by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The filibuster is fundamentally different today because of two changes to Senate rules—changes that explain the body’s current inability to act. The first occurred in 1917 in response to a filibuster of something called the Armed Ship Bill. The Senate adopted a cloture rule setting the threshold for ending debate at two-thirds of those present and voting, later changed to three-fifths of the whole Senate. Even then, this change was in keeping with common parliamentary practice. And even after its passage, the filibuster’s physically demanding nature meant that it was seldom employed. There were only 58 filibusters in the next 52 years—barely one per year.
But beginning in 1970, the number of filibusters exploded by a magnitude of 36-fold. There have been 1,700 in the 46 years since then. Why? Because in 1970, Senate Majority Leader Mike Mansfield instituted a “two-track” system that allowed the Senate, by unanimous consent or the approval of the minority leader, to bypass a filibustered bill and go on to another. This relieved a filibustering senator of the job of having to talk through the night and it relieved his colleagues of their frustration.
The filibuster thus entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote. Today the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business. The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution.
Whereas the filibuster prior to 1970 was designed to ensure debate, after adoption of the two-track system it mutated into a procedure that prevents debate. As a result, the greatest deliberative body in the world now has difficulty deliberating on anything of importance.
During the last session of Congress, the House sent hundreds of bills to the Senate, including appropriations bills required to fund the government. Instead of amending those bills and sending them back to the House, the Senate seized up—not for lack of majority will, but because of minority recalcitrance and the post-1970 filibuster.