Senate Poised to End Judicial Filibusters

As the confirmation of Neil Gorsuch works its way toward a final vote in the Senate, a pair of questions has animated coverage: will the Democrats filibuster the nomination, and, if they do, will the Republicans engage the “nuclear option” of removing the filibuster? As of this writing, it appears that Senate Minority Leader Chuck Schumer has enough Senators on board to go through with a filibuster, and that Senate Majority Leader Mitch McConnell intends to turn the key and launch the nukes.

All of this may be confusing for those whose familiarity with the filibuster comes from films, so let’s back up and walk through the whole thing. Under the Senate’s rules, any one Senator can hold up debate indefinitely just by continuing to talk. This is the classic, Mister Smith Goes to Washington filibuster, which can only be halted by a vote of 60 Senators and virtually never happens anymore.  Today, a Senator threatens to filibuster, and if there aren’t 60 Senators willing to tell him no, the bill just goes away.

However, there is one crucial point here: the Senate only works this way because the Senate decides to work this way. The Constitution grants each house of Congress the power to “determine the Rules of its Proceedings,” and specifies how members are selected, how many votes each member gets, and how many members must be in attendance to do business (source: my pocket Constitution). Beyond that, each house can conduct itself as it pleases. So far, Congress generally tries to maintain consistent rules from year to year, only modifying them at the beginning of a given session. But nothing forces them to do it that way.

This brings us to the nuclear option, which refers to the current majority deciding that filibusters no longer exist (or no longer exist for certain types of business). They simply amend the rules of the Senate by a simple majority vote, and the deed is done. The next Congress could undo that rule change, or bring back the filibuster but require 70 votes to halt it, or bring it back but only if the Senator speaks continuously and in rhyming couplets.

If the rules can change at any moment, how can they matter? That’s the question, and the reason that ignoring how things have been done in the past is dangerous. Democracy only works if everybody involved – citizens, legislators, bureaucrats – views the decisions of the legislature as legitimate. Following consistent rules, even when you have the power to break or rewrite them, is one of several ways of building that legitimacy.

The end of the filibuster for Supreme Court justices does not mean the end of the filibuster for everything: as of this writing, there is no indication that the ability to filibuster bills will be removed. We do not require much imagination, however, to see the current trend of partisanship in the Senate leading to its removal for legislation, too, which raises a question for us: what value does the filibuster hold?

The filibuster originated more or less as an accident: in 1806, former Vice President Aaron Burr successfully recommended a change to the rules of the Senate that left no procedural mechanism to end debate. The first filibuster did not occur until 1837, against a bill to charter the Second Bank of the United States; the ability to vote to end debate, called “cloture,” did not exist until 1917. The filibuster was wielded theatrically against both the 1957 and 1964 Civil Rights Acts, though both ultimately passed. Use of the filibuster gradually increased after a rules changes in the 1970s allowed, first, for other Senate business to proceed while a Senator was filibustering (they simply divided the day into periods dedicated to debate on one bill or another), and, second, for Senators to filibuster without talking themselves hoarse.

It’s difficult to tell exactly how often filibusters occur, because the best measurement for them is the number of times cloture is invoked, and cloture is invoked for reasons other than filibustering. Filibusters or their threat have killed many bills over the years, though they never halted a non-Supreme Court judicial appointment until the George W. Bush administration, and have stopped a Supreme Court nomination only once.

Ultimately, the Senate is governed only by the scanty rules laid out in the Constitution; the rest is precedent, tradition, and gentlemen’s agreements. The demise of the judicial filibuster would not change this fact. It would, however, signal that the Senate no longer recognizes that the strenuous objections of a minority can thwart the will of the majority. In my view, that is the greatest loss if the filibuster is revoked. The filibuster represents the idea that a minority party deserves power–real, measurable power, not just the right to be a voice in the wind–even though the majority isn’t obligated to grant or respect it, and even when that minority position is wrong.

John McCain is wrong when he implies that this is the beginning of the end of the Senate. Longer terms, statewide elections, and smaller numbers will all conspire to keep it distinct from the House, both slower-moving and with greater power per member. But this impending maneuver is a symptom of long trends: partisan polarization, the neglect of compromise, and the disdain for good government. Address those problems, and the filibuster won’t be necessary; let them continue to fester, and the filibuster won’t be of any use stopping them.