A device that was already used in the Senate in ancient Republican Rome, the modern tool of the filibuster originates in the Senate of the United States. A filibuster is a parliamentary procedure which aims at delaying the adoption of a law thanks to regulatory means of the upper chamber. This is also a dilatory technique which consists in making endless speeches in order to obstruct a debate.
In fact, when a senator is talking on the floor of the Senate, a bill cannot progress. When senators making filibusters feel like their arguments have been recognized among their peers, they stop and the bill can move to a final vote on the floor. However, in 1917, under President Wilson, the Senate adopted the “cloture vote”, which enables a supermajority of senators to end the debate. Initially, a supermajority represented two thirds of all elected senators. Then, in 1975, the number changed and the Senate currently needs three-fifths of all elected senators to override a filibuster, which means 60 senators.
The filibuster is not mentioned in the Constitution and it was not envisioned by the framers at all. The filibuster was initially conceived as a way to ensure that minority opinions were heard and understood before the Senate voted on an issue.
The first rules authorising the filibuster appeared in 1806 but the first filibuster occurred more than 30 years later in 1837. Nevertheless, they were used exceptionally until the beginning of the 20th century. For instance, from 1940 to 1960, there were only 10 votes in which the majority tried to end a filibuster. It’s only later that the filibuster became an ordinary tool used by organized parties: indeed, since the 1970s, senators use it more and more often, and for other reasons than they used to, causing hindrance to the legislative process today. The evolution of the use of this tool over the past half century is crucial to understand the current situation of malfunctiong in Congress. Thus, how does this tool impede the legislative process today?
As said previously, since the 1970s, filibustering has become increasingly frequent, and the whole point of using this mechanism has changed, hurdling the efficiency of the legislative branch: indeed, the filibuster has been used over 1,300 times since 1917, but the last 12 years represent nearly 600 uses of this tool. This drastic growth is mainly due to the fact that parties are becoming more and more ideologically polarized, and using the filibuster is now for the minority party a way to ensure that a piece of legislation they don’t approve of will not be passed into law.
In fact, until the 1970s, you could find conservative members in the Democratic Party or liberal members in the Republican Party. They made it harder for the parties to act like parties. But’s that history. Nowadays, parties have growingly antagonist positions on many national matters. For this reason, the debate could be similarly growing, but the minority party actually uses the filibuster to make sure that the bill debated on will be nipped in the bud. This is a major shift from the original aim of the filibuster, which was designed as a way to ensure debate would prevail over the majority’s sole desires. The filibuster now allows individual senators to effortlessly place personal political agendas above the work of government with no consequence, frequently threatening to filibuster a bill in order to prevent a mere discussion on it. As a result, even routine Senate functions get mired in partisan politics, and important pieces of legislation that have enjoyed majority support in the Senate died in the face of filibusters for lack of cloture. Threatening of using the filibuster enables the minority party to tell the majority party that if they want to pass a bill, they will need a “supermajority” instead of a normal majority: and because parties are more and more polarized in our contemporary era, getting 60 votes to get cloture seems very unlikely, and therefore the majority party most of the time drops the bill before a senator has actually used the filibuster. The overuse of the filibuster by the minority party to get what it wants is a sign of the fact that a mechanism that was created to allow both parties to discuss is now just enabling one party to prevent the other from making any decision, this way preventing the executive party to merely govern. The filibuster seems to be a mechanism suited for a bygone era and it consequently needs to be overhauled.
In 2015, reforming the filibuster seems necessary to both the Republican and Democratic Parties, which used to disagree on this matter. On the one hand, the overuse of the filibuster has led to the frustration of the Democrats over what they denounced as “a Republican campaign to stall the machinery of Congress, stymie President Obama’s agenda and block his choices for cabinet posts and federal judgeships by insisting that virtually everything the Senate approves be done by a supermajority”. On the other hand, the Republican Party, that used to disagree on the need of a reform of the filibuster, now considers that it is necessary. « Abolish the filibuster, » conservative columnist Charles Krauthammer wrote. He continued: « I know that breaks a lot of china. But Congress is already knee-deep in fractured porcelain”: there has thus been a real shift, from the moment Republicans accused Democrats of wanting to damage the character of the Senate and of disregarding the constitutional prerogative of this institution as a body of “advice and consent” on presidential nominations, to today’s realization that the filibuster has too great of an impact on the whole legislative process and on the ability to govern the country.
But even though both of the parties agree that this mechanism needs reforming since it is not adapted to our times, they both still use it whenever they form the Senate minority. In fact, between 2007 and 2008, under a democratic majority, Republicans filibustered 112 bills, on approximately everything. Republicans have historically filibustered more bills than Democrats have, especially since they have been in the minority longer (over the past 100 years, the Democrats have held power of the Senate for 65 years). This important use of the filibuster in a malfunctioning body shows that even though parties recognize the fact that this mechanism might need to be changed, they still use to make their interests prevail. And not only do they use the filibuster in the Senate but they also use it in state legislatures, which also prevents legislators from acting. It is yet another hurdle to the proper functioning of the legislative branch, even though it is true that it is not the same kind of hurdle, since cloture is easier in most state legislatures than it is in the Senate (in fact, only chambers in 13 states require more than a simple or absolute majority to limit debate). The question of the filibuster is thus very paradoxical: on the one hand, senators realize that this mechanism needs to be reformed, but on the other hand, they have used it increasingly over the past decade.
The increasing use of the filibuster as a political threat or as part of the minority obstructivism is consistent with a period of increasing bipolarization in both chambers of Congress. Additionally, this phenomenon reveals the malfunctioning of what is called the “Broken Branch” by Thomas E. Mann: Congress.
In 1960, when Donald Matthews wrote a book on the US Senate, he emphasized what he called its “institutional patriotism”. By this expression, he described the fact that Senators identified themselves as members of the Senate rather than as partisan opponents. However, since Newt Gingrich’s tenure as Speaker of the House, a new culture of partisan polarization has emerged. The era of bipartisan cooperation in law-making is over. And the demise of cooperation coincides with the current public dissatisfaction with Congress. For instance, in November 2015, Americans’ approval rating of Congress was only of 11%.
In fact, Congress is seen as “dysfunctional”. And this perception of dysfunction is one of the most burning issues the legislative branch will have to face in the coming years, showing the need for the reform of Congress. Although this is far from a prospective study about what can be done to reform this central institution of the US political system, we will more narrowly analyse the impact of the filibuster on this malfunctioning. We may point out two main causes in which filibustering is involved.
On the one hand, the increasing polarization of the debates in Congress and the gradual decline of moderates in both Republican and Democratic parties clog the law-making process. According to François Vergniolle de Chantal, polarization leads to Congress’s passive submission to the executive under a unified government or to a total standstill of Congress under a divided government. The presidency of George W. Bush between 2002 and 2006 illustrates the first case and Obama’s presidency since 2010 the second case. However, in both cases, the US Senate has embodied this political “crisis”. Indeed, the Senate, thanks to legislative obstruction, is the only body in which the minority voice has power. As a consequence, the Senate encourages ideological obstruction and thus, to filibustering, holds and procedural delays. This type of political maneuvering initiates a vicious cycle as it increases polarization by opposing members of different parties instead of encouraging senators to cooperate with each another.
On the other hand, this obstruction paralyzes the institution on such diverse issues as nominations, budget process, or legislation. Furthermore, the Senate is traditionally a deliberative body that often makes decisions by consensus. Thus, the need for a coalition of senators to pass a bill is more important than in the House of Representatives. In a word, due to the increasing use of filibusters or holds, the legislative process is clogged.
To put it in a nutshell, filibustering in the US Senate contributes to the progressive weakening of the “broken branch” and the need to reform both filibusters’ use and the global working of Congress becomes more and more crucial.
An article by Ana Le Jeune, Claire Perrodon, Simon Desforges