The Senate likes to call itself “the world’s greatest deliberative body”. It’s doubtful that there are any Senators that actually believe that any more. A big stumbling block that prevents real debate from actually occurring in the Senate is the filibuster. Most of us have a rather romantic notion of what a filibuster is, thanks to Jimmy Stewart in Mr. Smith Goes to Washington. Up until 1970, that’s exactly what a filibuster was; a single Senator speaking for as long as he could. Filibusters were a delaying tactic, meant to register extraordinary dissent with a piece of legislation. The rationale behind having a filibuster at all was that it would force a broader, more bipartisan solution to controversial, wide-ranging legislation that would significantly alter American society. Nowadays, the only time a Senator would actually go to the floor to actively filibuster by talking nonstop, is when they are trying to flex for the camera, like Ted Cruz did when he read “Green Eggs and Ham” to try to stop Obamacare from happening. The reason for that is a rule change that happened back in 1970 which allowed for “theoretical debate” on a proposed law, which in turn became a way for the minority party to block legislation. Now that the Senate is back under (kinda sorta) Democratic control, there has been a push for eliminating the filibuster entirely. Due to how flimsy Democratic control of the chamber is, Republicans has refused to enter any sort of power sharing agreement that might simplify passage of President Biden’s legislative agenda, unless Democrats guarantee the sanctity of the filibuster. A potential compromise would be to fix the filibuster, rather than getting rid of it, by getting rid of the 1970 rule change that turned the filibuster into a weapon to block legislation from happening.
According to tradition, Thomas Jefferson had breakfast with George Washington sometime shortly after the Constitution was ratified. Jefferson had been in France during the Constitutional Convention and felt the Senate was an unnecessary institution. When asked why Congress has two chambers, Washington responded, “Why did you pour your tea out of your teacup into your saucer?” Jefferson explained that it was to cool the hot tea. “Even so,” Washington replied, “we pour legislation into the senatorial saucer to cool it.” This parable (which is of questionable veracity) and the six-year duration of Senate term were all meant to encourage Senators to rise above the passions that were supposedly more apt to percolate through the House of Representatives, with its shorter terms and proportional representation. The filibuster found its way into the Senate bylaws as a way to preserve that more congenial atmosphere and to foster values such as deliberation, reflection, continuity and stability in the Senate. Even though the Constitution gives the House and the Senate the ability to make their own rules, and Senate members have every right to change the bylaws of the Senate as they see fit, the Senate was meant to be less overtly partisan than the House, which has always been majority rule and a rule change that weakens the ability of the minority party to push back against the actions of the majority party goes against the intent of the framers of the Constitution and gives credence to the question of why we have a Senate at all.
There was no limit to how long the Senate could debate an issue until 1917, when they first adopted “cloture” (or closure for those of us who don’t speak French), a motion to bring debate to an end. Originally, cloture required two thirds of Senators to vote to end debate. This was first implemented to prevent a group of isolationist Republican Senators from stymieing President Woodrow Wilson’s preparations to enter World War I. In 1964, a group of 5 southern conservative “Dixiecrat” Senators filibustered for 60 days against the Civil Rights Act. They did this by holding the floor and speaking nonstop, to prevent the Senate from conducting other business, with the intention of running out the clock until the end of the Congressional session.
Therefore, in 1970, Democratic Senator Mike Mansfield, the Senate Majority Leader at the time, developed a “two track” system, that allowed multiple bills to be considered by the Senate simultaneously. This meant that if a Senator decided to filibuster against a certain bill and the Senate didn’t have the votes to impose cloture, then the Senate was allowed filibustered bills to be set aside and move on to other matters, leaving the filibustered bill in a limbo of endless “theoretical debate”, without resolution, while in practice, the bill was blocked from proceeding. This also spelled the demise of the Mr. Smith Goes to Washington-style “talking” filibuster. Previously, when Senators wanted to filibuster a bill, they needed to hold the floor and talk nonstop, gumming up the works and attempting to force their colleagues in the majority to compromise. Now, Senators don’t even need to leave the comfort of their offices to log a filibuster, or say a single word. Rather than furthering deliberations that might lead to compromise and resolution, modern filibusters stifle debate, preventing compromise from occurring.
The Senate should abandon the two-track system, rather than eliminating the filibuster entirely. Senators who wish to filibuster a bill must actually come to the floor to do so and actively talk to delay the vote. Let’s call it the “Mr. Smith Goes to Washington” Rule. At the same time, the supermajority of 60 votes to achieve cloture for all federal judges and executive appointees should be restored. This would have the effect, not only of restoring protections to the minority party and restoring the filibuster to its place as a rare tool of last resort in the Senator’s arsenal, it would also strengthen the legislative process. There are those on both the left and the right who worry that the two-track system has weakened the legislative branch and has thus correspondingly strengthened the executive, weakening the democratic process.
Two other significant changes to how the Senate does business that are also worth mentioning here are the elimination of the blue slip custom and banning senatorial holds. The blue slip custom and Senate holds are holdovers from before the passage of the 17th Amendment, which gave us direct election of Senators. These Senatorial courtesies are being taken advantage of for partisan ends, and it is to the Senate’s advantage to get rid of them and prevent these customs from leading the Senate down the partisan rabbit hole, as the two-track system filibuster has. The blue slip custom allows Senators to potentially block judicial nominees from their home state from being considered by the Senate Judiciary Committee. The blue slip custom isn’t a bylaw of the Senate, but it is a tool that can be used to partisan ends. A Senate hold is a bylaw that is also commonly used to hold up or block legislation. A hold allows a Senator to prevent certain motions that pertain to said Senator’s home state from being brought to the Senate floor. Like a filibuster, a hold needs to be defeated by a cloture vote, and like a modern filibuster, can be accomplished without public scrutiny.
Restoring the filibuster to its pre-1970 form will keep our democratic institutions strong and fair. The framers believed in protecting the rights of the minority through the use of checks and balances like the filibuster. But now the filibuster has become a weapon that the minority party can use without consequence to kill bills and nominations that have the support, not just of the majority party, but of the majority of the country. If we sacrifice the filibuster on the altar of partisanship, then we weaken those checks and balances and weaken the institutions that serve us and allow us to continue to participate in the democratic process. By abandoning the two-track filibuster system, perhaps we can regain some of the bipartisan good will we’ve lost, and shake free of the dragging, grinding pace of government we currently have to deal with.