The Inexorable Filibuster Arms Race

The filibuster has become conventional political warfare in the Senate.

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Washington – or at least its 100 denizens in the U.S. Senate – interrupted its regularly scheduled gridlock this week long enough to agree on a productive way to disagree, suspending the chamber's rein of filibusters long enough to confirm a few presidential appointees.

This involved, as everything must in this city these days, the forcing mechanism of crisis: Democrats threatened a very modest curtailment of the filibuster, specifically eliminating its being used to block executive branch appointments. In the staid language of the Senate this would have constituted a "nuclear" option. But between a rump group of Republican senators bypassing Senate GOP leader Mitch McConnell of Kentucky to forge a deal and a late night session under the watchful eye of legislative ghosts in the Old Senate Chamber, the crisis was averted amid hopes for a new spirit of cooperation. "I would say it's a real harbinger for change," Sen. Dianne Feinstein tells my colleague Susan Milligan.

That optimism is understandable after having walked away from a fight on a legislative cliff. I hope it's well-founded, but I remain skeptical that this is – or should be – the last we'll hear about filibuster abuse and reform.

[See a collection of political cartoons on Congress.]

And the parliamentary procedure famously spotlighted in Jimmy Stewart's classic film, "Mr. Smith Goes to Washington," has been abused. For perspective, understand that between 1917 – the earliest records the Senate has – and 1970, there were never more than seven filibusters in a two-year congressional session (as measured by the number of times motions for cloture, which aim to break filibusters, were filed). Between 1971 and 1992, there were between 24 and 54 filibusters per session, a figure which ticked up in the Clinton and Bush years when there were between 60 and 82 per session. But things took off once Democrats took control of the chamber in 2007 with between 115 and 139 filibusters per full session since. Trimming the power of the filibuster might be today's nuclear option, in other words, but the filibuster itself used to be that. Now it's just conventional political warfare.

And filibuster abuse is a symptom of a broader breakdown in political norms which encouraged the notion that certain tactics and tools were off-limits or only rarely employed.

No one seriously used to contemplate threatening a default on the country's debt or a government shutdown over partisan ends; ditto out-of-cycle redistricting, which occurred in Texas in the last decade and was attempted by Virginia in this one; and, of course, a 60-vote supermajority for virtually all legislation in the Senate has become so commonplace that some sloppy reporters refer to it as a requirement rather than as a roadblock.

[Vote: Do the Senate's Filibuster Rules Have to Go?]

The rise of the filibuster has also been fueled by other factors, including the polarization of the country as well as the GOP's specific lurch to the right which has been pushed by the conservative media-entertainment-complex and a permanent, primary-challenge-focused political purity movement. Traditional notions of legislating – that is, focusing on solving problems – increasingly conflict with a permanent campaign mentality that eschews compromise as an obstacle to ideological victory. (Liz Cheney's Wyoming Senate run, unlikely to succeed as it seems, is illustrative given that the main complaint with incumbent GOP Sen. Mike Enzi is tonal, not substantive: He's sufficiently conservative, but insufficiently truculent.)

The complicating factor is the uncertainty of who will be filibustering in 2015 and 2017. The key obstacle to filibuster reform might be Democrats' knowledge that at some point the GOP will control the chamber again. But this is an "old Senate" idea which misses the point of filibuster abuse: Why does anyone think that the party that raised the bar on misusing the minority's traditional prerogatives would hesitate to do the same once it again assumed the majority's raw power?