There’s No Magic Trick for Fixing the Filibuster

There’s something baffling in Bill Scher’s piece on eliminating the “silent filibuster,” but it takes a bit of (painful) explaining to understand. Still, I think the effort is worth it because it touches on the larger debate on how to govern in the face of a determined minority opposition.

I think the best way to approach the filibuster is to understand two basic ideas or traditions in the U.S. Senate. The first is that there’s no natural limit on how long a senator, once recognized on the floor, can speak. The way this is controlled is by agreements between the majority and minority leader that lay out the overall time for debate on a particular issue. Once the Senate adopts a topic (bill or resolution), both parties will get a certain amount of time which will then be divvied up to individual senators at the discretion of each party’s floor managers. But these arrangements, while negotiated between the party leaders, are then subject to a “unanimous consent” vote. If any senator doesn’t agree to limit debate, then the agreement is not operative.

The “unanimous consent” provision is the most important Senate tradition. Since nothing can happen without all 100 senators consenting, a variety of rules have developed to manage how the chamber can still function. The most well-known of these pertain to the filibuster. For purposes of brevity, I won’t go into too much detail on the early history of the filibuster and will just focus on the mechanics.

The basic idea is that there needs to be a way to overcome the objection of a single senator. We often think about this in a needlessly complex manner. For example, there could be two senators who are objecting, or two dozen, or even fifty. But the requirement is only one to deny unanimous consent.

In the late 19th-Century, as the federal government’s responsibilities grew, the Senate’s schedule became very hectic, and delaying tactics more potent. While increasingly vexing, it wasn’t until 1917 that, “with frustration mounting and at the urging of President Woodrow Wilson, senators adopted a rule (Senate Rule 22) that allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote.”

In 1975, the cloture requirement was dropped from two-thirds to three-fifths (or 60 votes in the current 100-member Senate). But the basic outlines of Rule XXII remain intact. Cloture is a complex multi-stepped procedure but it should be understood as a way of overcoming the two above-mentioned Senate traditions: you can’t make a senator shut up and you need unanimous consent to do anything.

Armed with this understanding, you can see how cloture can defeat a filibuster. In fact, looking at it this way you can more properly understand what a filibuster is and is not.

A filibuster occurs when there’s a lack of unanimous consent. This means that the Senate Majority and Minority Leaders cannot craft an agreement to limit debate. In other words, they can’t make objecting senators shut up. In fact, without unanimous consent, they can’t even begin debate on a bill, let alone end it. Naturally, if the Minority Leader himself is not on board, that assures a lack of unanimous consent.

Cloture is a procedure whereby a supermajority of senators can get around these limitations. Presently, if three-fifths of the body agrees, then a bill can be recognized and debate on the bill can be limited, thereby assuring that it can get a vote on final passage.

Now, it’s important to understand that a rule change made in 1970 fundamentally changed how the filibuster works. It used to be that the Senate could only consider one bill at a time. This meant that if a senator wanted to object to a bill, he or she would thereby hold up all other Senate business, including legislation they (or their allies) might support. This created a key constraint on how often senators objected to the consideration of bills, and also put limitations on how sustainable those objections could be, but it also made filibusters very disruptive to the Senate calendar.

By 1970, there was bipartisan agreement that the work of the Senate should not be susceptible to this kind of obstruction, so when then-Majority Leader Mike Mansfield of Montana proposed a procedural alteration allowing for a two-track system, he was granted unanimous consent for the change. The two-track system made is possible for the Senate to consider more than one bill, so if one bill was going through the cloture process, work on other business could still proceed.

The adoption of the two-track system is often described as the starting point for the “silent” filibuster. The reason is very simple. Since the obstructed bill is now set aside while other bills are considered, it’s easy to forget about it. There’s no need for a senator to stand up on the floor and talk incessantly about why the bill should not get a vote because the bill is no longer under active consideration. The costs of objecting are thereby greatly reduced and coalitions of objectors are much easier to sustain.

The adoption of the two-track system wasn’t a rule change per se because it was adopted informally through unanimous consent. This means that present-Majority Leader Chuck Schumer could theoretically do away with two-track without using the nuclear option to change the Senate rules. The idea has been raised that Schumer could just “waive” the two-track rule on his own authority and do away with the “silent” filibuster, and Scher devotes his column to explaining why this might have unintended consequences and not work out particularly well.

Maybe I’m missing something, but there seems to be a rather glaring problem with the whole premise here.

The premise is that reforms to the filibuster ordinarily would require a rule change, and even using the nuclear option, Schumer would need at least 50 votes, plus the support of Vice-President Kamala Harris to break a 50-50 tie. Since there are at least a few Democrats who won’t go along with this plan, the only way Schumer can do anything meaningful is to scrap the two-track procedural change, which is possible for him because it isn’t actually a rule.

But remember that the two-track system was adopted with unanimous consent. That means all 100 senators consented to the change. The nuclear option is actually far easier since it only requires a 51-50 majority. It’s unclear to me how Schumer could scrap two-track on his own authority without getting unanimous consent.

I suppose he could simply stop using it, although this is an unappealing option. Under the terms of two-track, he still needs the consent of the minority leader to set aside one bill and move onto another, but this is usually forthcoming because the minority leader doesn’t want to take the blame for grinding all Senate business to a halt. If Schumer were to eschew the use of two-track while it was still technically available to him, he would become the one responsible for obstructing his own calendar.

Even if there weren’t a problem with the premise, the reform would be of dubious utility. Scher is correct that the original motivation for adopting two-track is still operative. If the Senate went back to only being able to consider one bill at a time, it would be much harder to get its work done. There would be fewer filibusters, surely, because the costs of obstruction would go up. But there would still be filibusters, especially in our more partisan political environment, and they would have a crippling effect.

I think we should seek solutions elsewhere. The basic idea should be that a determined majority can get a vote eventually, provided that they’re willing to ride out the process and associated costs in time. It all comes back to the two underlying traditions: you can’t make a senator shut up and you need unanimous consent to do anything. Without these traditions, all of this other nonsense goes away and the majority can do what it wants, just like it can in the U.S. House of Representatives or any parliamentary body.

Assuming there’s some value in bicameralism, and it’s a popular feature in our states and in many representative systems, there’s no need to abolish the Senate necessarily, although it should be weighted in a representative fashion–not one in which Wyoming and California have the same number of votes. But if we’re going to have a Senate–and it’s not going anywhere–we should at least have one that can function. It would function better if there were a natural limit on how long and how many times a senator can speak on a particular motion or bill. It also seems unreasonable to have a unanimous consent requirement. One senator out of a hundred should not be empowered to hold up all business.

Of course, it’s highly unlikely that my reform ideas will be adopted, but the truth is that all the other solutions are made necessary by the shortcomings of these two traditions. Everything revolves around managing the problems they create.

A return to the “talking” filibuster could help if it’s done the right way. I don’t think this would involve getting rid of two-track. Instead, there should just be a provision that a vote will happen when the objectors stop talking. There shouldn’t be a three-fifths requirement at all, but instead just an assumption that the bill will be considered when debate has been exhausted. The majority will not want to put up with protracted delays too often, so they’ll only be willing to ride out a determined filibuster on their highest priority items, and the minority will have a sustained period to explain their objections.

It could be that the Senate will come close to a solution like this by using some kind of sliding scale, where cutting off debate becomes progressively easier in small steps. But, regardless, eliminating two-track is probably not something Schumer can just do, and it’s not a great solution in any case.