The Senate’s dramatic curtailing of filibuster use for executive and judicial nominees is a substantial break with the past. But most commentators have failed to note that the filibuster in its current form is itself a relatively recent development. The ‘modern’ filibuster, too, has design flaws that have contributed to unprecedented levels of obstruction in recent years. Because last week’s change in the filibuster rules applies only to nominees, these flaws will continue to threaten the Senate’s ability to pass legislation and govern.
The popular image of the filibuster – with a senator reading the dictionary or quoting from the Bible to delay a vote – bears no resemblance to the filibuster in its modern form. These days, speaking filibusters are vanishingly rare. Since procedural changes in the 1970s, senators can filibuster without saying a single word. The burden is on the majority to garner 60 votes to halt the obstruction. With political polarization reaching new heights in recent years – and Senate collegiality hitting new lows –the modern filibuster has effectively become a minority veto.
The impact on Senate productivity has been significant. According to a Brennan Center analysis, in 2011-2012, the Senate passed a record low 3.96 percent of bills introduced in the chamber, a 51 percent decrease from 2005-2006 and an 85 percent decrease from the high in 1955-1956.
Debates over cloture have also crowded out other Senate activity. In the last three Congresses, the percentage of Senate floor activity devoted to cloture has been more than 50 percent higher than any other time since at least World War II.
Ironically, the filibuster also undermines open debate in the Senate. Most filibusters are done silently and behind closed doors, blunting legislative accountability and transparency and giving procedure precedence over substantive lawmaking.
Although the rules of the game have now changed for most nominations, the filibuster rule – and accompanying abuse – is still alive and well for legislative activity. In fact, the very same day the Senate changed the filibuster rules for presidential nominees, a Senate minority blocked a major defense authorization bill from moving forward. Until the filibuster rules change for legislation as well as for nominees, a minority of Senators can continue to seriously hamper the chamber’s effectiveness.
The stakes of continued obstruction are high. A recent Gallup poll found that the percentage of Americans who approve of how Congress is doing its job has fallen to single digits – the lowest level in history. The American people know that our government isn’t working.
To regain Americans’ confidence, the Senate needs to curb filibuster abuse in the legislative process by creating rules that facilitate debate and deliberation and impose some costs on obstruction. Recent proposals include requiring senators to stay on the floor during a filibuster and actually debate, shifting the burden to require at least 40 votes to sustain a filibuster, rather than requiring 60 votes to break one, or reducing the number of votes required to break a filibuster.
Until reforms for the filibuster of legislation are adopted, the “world’s greatest deliberative body,” as the Senate is often called, will continue to be hampered not only in its ability to deliberate, but to govern effectively at all.
Bannon is counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law.