In recent weeks, there has been quite the hue and cry about the possibility that, if the Democrats “filibuster” the nomination of Neil Gorsuch, House Majority Leader Mitch McConnell will invoke the “nuclear” option and remove the availability of the “filibuster” for Supreme Court nominations. Politicians being the short-sighted creatures they so often are, it seems likely this will spell the end of the minority’s use of the “filibuster” in legislation as well. You might ask yourself why I am using quotation marks around the word filibuster; it’s because the tactic Senators intend to use against Judge Gorsuch isn’t a filibuster at all, it is the cloture rule. The filibuster was useful long before the cloture rule existed, and if Senators are willing to tough it out, it can still be useful for years to come.
What is the difference between a filibuster and cloture?
The filibuster is not a constitutional institution, nor is it a rule of the Senate. A filibuster is “the use of extreme dilatory (see dilatory tactics (as by making long speeches) in an attempt to delay or prevent action especially in a legislative assembly.” Originally, filibusters consisted of one or more Senators standing up and speaking for extended periods, usually reading documents into the record, to delay or prevent a bill from being passed. This practice became increasingly popular over the course of the 19th century, and the majority party, whether Democrat or Republican, was never particularly happy about it.
When people talk about the “filibuster” in the modern context, they are actually talking about threats of a filibuster that are overcome by something called cloture. To have “cloture” means that you have enough Senators present to force a vote on a bill or nomination after 30 hours of debate. It is a Senate rule designed to stop filibusters.
Cloture was created in 1917, because Woodrow Wilson could not get his proposals to arm merchant ships through the Senate. He had public opinion on his side, and he pushed the Democrats in the Senate to create a cloture rule as a national security measure. After wrangling with the Republican minority, the Democrat-dominated Senate adopted the rule, which required 67 Senators to force debate on a bill. In 1975, the rule was changed to require 60 Senators. So when people talk about the “nuclear option,” they are talking about changing the cloture rule so that fewer Senators are needed to end a filibuster. No one can get rid of the filibuster, because it was never a formal rule in the first place.
The filibuster’s effectiveness doesn’t depend on blocking legislation
When I say the filibuster has been effective, I do not mean it has always successfully blocked legislation or a nomination. It’s a useful way for an individual Senator (or group of Senators) to draw attention to his or her opposition to an issue, even if they don’t successfully prevent legislation from being passed. The first was in 1841, over a rule to hire Senate printers, so they haven’t always been about the most contentious issues of the day. Some filibusters have seen one Senator boldly stand up for a principle (misguided or not) before being overcome by his fellow Senators, while others, like the coalition who filibustered the nomination of Supreme Court Justice Abe Fortas for Chief Justice, have successfully achieved their goal.
The filibuster has been a mixed blessing; it has not always been invoked for causes we’re likely to celebrate. Senator Huey P. Long of Louisiana read the Constitution, Shakespeare, and oyster recipes into the record to delay a bill giving his enemies appointments under the New Deal (this was supposedly the inspiration for Jimmy Stewart’s character in Mr. Smith Goes to Washington). Even more infamous is the record-setting filibuster of the Civil Rights Act of 1957 by Strom Thurmond of South Carolina. He stayed on the Senate floor for over 24 hours. His staffers famously got him a bucket to pee in, strategically placed so he could have one foot on the floor of the Senate. Obviously Thurmond did not kill the legislation he took aim at, but he made a hell of an impression, and the public became well aware of his position on the bill. Indeed, we still talk about it today.
The purpose of a filibuster is not just obstruction, but to prove a point
I’m not happy that Mitch McConnell is likely to make it easier to shut down filibusters of judicial nominees, and I’m even more concerned about a future in which he might kill it for legislation. However, I have no control over those likely outcomes. So I’m going to choose to look at the likely change in cloture rules in another way – let’s take back the power of an actual filibuster. Anyone remember how quickly obscure Texas legislator Wendy Davis shot to prominence when she filibustered an anti-abortion bill in Texas? Taking an actual stand for one’s principles in a visible way is a rare occurrence in public life and no one needs an injection of visible principle more than the Senate. We can’t change what McConnell may or may not do, so let’s make it work to our advantage. Chuck Schumer, Dick Durbin, and the rest of the Democratic Senate should prove to us that they’ll really sacrifice for our interests. I’ll even buy them a bucket.