Norm Ornstein: Only Use the Filibuster Rarely

The filibuster shouldn't be used as a weapon of mass obstruction

By Norman Ornstein

, Resident Scholar at the American Enterprise Institute

November 28, 2012

About Norman Ornstein:

Normal Ornstein is a resident scholar at the American Enterprise Institute.

Rule XXII in the Senate—the one governing filibusters—was last changed in 1975. After that, the filibuster became a periodic, albeit relatively rare, impediment to action, a source of occasional frustration for majority leaders. But all that changed over the past six years or so. The rule did not change, but the practice, and the norms of the Senate, did. For the first time ever, filibusters became regular instruments of partisan strategy, not just vehicles used by rogue individuals, small groups, or factions (like the Southern Democrats in the 1950s and 1960s over civil rights.) For the first time ever, filibusters became weapons of mass obstruction, not rarely applied approaches by minorities in the Senate to draw lines in the dust on issues of great national moment where they felt intensely. Filibusters began to be used on a routine basis, including on bills and nominations that ultimately passed unanimously or near unanimously. Filibusterers, meaning Republicans, insisted on using every tool, including the full 30 hours allowed for debate after cloture is invoked, even without debating, to soak up more of the precious time on the Senate calendar, to bollix up the agenda of the majority and the president.

[See a collection of political cartoons on Congress.]

All of this is why, even though the rule itself is not fundamentally at fault, a rules reform is important—not to end the filibuster, but to return it to its historic role and legacy, a rare instrument reflecting intense feelings by a minority on an issue of historic significance. That means putting the onus for continuing debate on the minority, not as it is now, on the majority to end debate. It means having consequences, painful ones, for those thwarting the majority will. And it means streamlining the rules so that there is only one filibuster allowed on any bill, not the multiple opportunities now, and there are expedited procedures to reduce obstructionist delays, including those after cloture has been invoked. Ideally it would include even more reforms to enable presidents to confirm their executive nominees without capricious holds. Also ideally, it would be done with bipartisan support, as it was in 1975, by giving the minority a guaranteed opportunity to offer timely and relevant amendments to bills, something now often denied.