Magazine article Policy & Practice

New Year's First Big Fight: Limiting the Filibuster

Magazine article Policy & Practice

New Year's First Big Fight: Limiting the Filibuster

Article excerpt

The ability of any one Senator to hold the Senate hostage with the threat of a filibuster has become a hallmark of why Congress has been so ineffective for the last several years. The suggestion that the Senate change its rules to limit or even eliminate the filibuster is not new. It has been the focus of attention for decades.

The current Senate Majority Leader, Harry Reid (D-NV), has said if he maintains his office next year, changing the filibuster rule will be one of his first priorities. (1) This is not just a parliamentary fight that only those who follow Congress closely should care about. The ability of senators to engage in filibusters has a profound and pervasive effect on how the Senate conducts its business.

This issue has the potential of changing the entire legislative landscape in Washington, depending on just how far the majority leader and his caucus are willing to go. Reid is not alone in his desire to amend Senate rules. Senators Tom Udall (D-NM), Tom Harkin (D-IA), Al Franken (D-MN), and Jeff Merkley (D-OR) have all introduced resolutions in this Congress to amend the Senate filibuster rules. Current Senate Minority Leader, Mitch McConnell (R-KY), has said he does not support changing the rules governing the filibuster.

A Little History

Article I, Section 5 of the U.S. Constitution states, "Each House may determine the Rules of its Proceedings...." The filibuster is the product of Senate rules and can be changed by the Senate. What is important is that there is no constitutional provision that established the filibuster. The concept of a filibuster probably never occurred to the Father of the Constitution, James Madison. The key to understanding how a filibuster works is something called the "Previous Question."

In its simplest form, the Previous Question is a motion to end debate and vote on the pending matter, either a bill, an amendment, or even a motion (a motion to proceed to consideration of a bill). Today, the House of Representatives' rules allow for a member to move the Previous Question (2) but no such motion is allowed under the current rules of the Senate. This has not always been the case; in fact the original Senate rules allowed a member to move the Previous Question. In 1805, the Senate adopted the first re-codification of the standing rules and the motion was eliminated mostly because it had been used only once in the 16 years since Congress was organized. (3) In other words, it was not the intent of the Senators in the Eighth Congress to establish a procedure whereby Senators could filibuster a bill or a motion. On four separate occasions (1850, 1873, 1883, and 1890) Senators tried unsuccessfully to reinstate the previous question into Senate proceedings.

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It was not until 1841 that the first full filibuster occurred on the Senate floor. (4) Filibusters were rare occurrences until 1917, when the Senate adopted what is now known as "cloture," a motion to end debate on a bill (it did not apply to motions) which at the time required two-thirds of all Senators present and voting to be successful. Furthermore, Senate Rules also allowed cloture to be invoked only on a bill being debated on the floor of the Senate. In 1949, the Senate changed the filibuster rule to allow a cloture vote on a motion to proceed and also changed the requirement to two-thirds of the entire Senate membership, not just those present and voting.

The filibuster rule continued to play a critical role in the history of civil rights legislation in Senate until the 1960s, when under the leadership of then Majority Leader Lyndon Johnson, the Senate was able to pass the Civil Rights Act of 1964. Johnson was able to convince enough opponents of the bill that if they continued to filibuster civil rights legislation, the Senate would adopt an amendment to its rules to completely eliminate the filibuster. Throughout the 1950s there were numerous resolutions introduced in the Senate to change the rules to limit filibusters. …

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