Q: What exactly is a filibuster?
A: The classic understanding is the way Jimmy Stewart, in the 1939 movie "Mr. Smith Goes to Washington," stands and talks without stopping to delay proceedings and make a point. Under Senate rules, unless the rules have been waived temporarily, a senator who has been recognized to speak can keep the floor as long as he continues speaking. This isn’t the practice in question today, though. When the current Majority Leader complains about filibusters, he means how many times the Senate has voted on a motion to bring debate to a close, called cloture. Cloture forces an end to debate, so it cuts off amendments. The Majority Leader calls it a filibuster whenever he makes the motion to end debate. Sometimes the minority party opposes this motion because members wish to have an opportunity to offer amendments or engage in further debate, and sometimes the motion to end debate is approved. Either way, the Majority Leader claims it is a filibuster.
Q: Regardless, isn’t this practice preventing the Senate from getting work done?
A: That might be the case if every time the Majority Leader made a motion to close debate the Senate had been considering a bill for days or weeks, and had voted on dozens of amendments, yet there was no end in sight. But just the opposite has been happening. The current Majority Leader has filed a motion to cut off debate on the same day a bill has been taken up more than 220 times since he became the leader in 2007. So, few, if any, amendments have been considered when he cuts them off. The Majority Leader has used a tactic where he puts forward blocker amendments to keep other senators from proposing amendments. He can do this because of the Senate tradition – not a rule – that the Majority Leader be recognized first. Ironically, the Senate rules make clear that whatever senator seeks recognition first should be recognized and any senator has a right to offer an amendment. The Majority Leader also has simply informed the minority party that he’ll block all amendments to a bill he plans to bring up. Under those circumstances, it’s unlikely the minority party would go along with a vote to proceed to that bill. The unprecedented use of these tactics to limit and control debate in the Senate has become routine and prevents the work of the Senate from being done, where amendments are offered and legislation is considered with rigor and usually improved.
Q: Still, wouldn’t it be more efficient to abolish the filibuster?
A: The aim of the U.S. Constitution is to protect the individual rights of all Americans, not the right of a majority to impose its will on an unwilling minority. This goal is sought in the separation of powers among the three branches of government, the emphasis on the rights of states, a bicameral – House and Senate -- legislative branch, and the structure of the Senate, in particular. The Senate is designed to prevent temporary majorities from acting hastily and trampling on the rights of the minority. The terms of senators are staggered, so only one-third of the Senate is up for re-election at a time, unlike the House of Representatives where all members are up for re-election every two years. This makes it less likely that one party can sweep the election and gain control of the entire legislative branch of government at one time. The changes to the Senate rules being sought by today’s Majority Leader (with a partisan move that would, in fact, violate an existing Senate rule) would fundamentally transform the character of the Senate in a way the Founders never intended.
Q: But if the Senate can’t function, what is the answer, then?
A: A more deliberative process is needed. One of the most productive reforms might be to do away with the tradition that the Majority Leader can block amendments, which is actually contrary to Senate rules already. In addition, some of the best examples of bipartisanship happen at the committee level, where senators of both political parties delve into the details of legislation, iron out imperfections, and build broad-based support for measures. That’s how most bills should be handled. When I chaired the Senate Finance Committee, the committee developed and passed legislation on taxes, international trade, and health care in a bipartisan way, and the committee bills were debated extensively on the Senate floor, including votes on amendments from Democrats and Republicans. In recent years, however, the Majority Leader has preferred to write bills behind closed doors and used a parliamentary trick to bring them right to the floor, bypassing the usual committee process. Honoring a legislative process that builds from the ground up, through the work of committees with expertise in policy areas, rather than the top down, with a politics-first approach, would do a lot to restore the work of the Senate.