Filibuster Fact of the Day
One of my new pet peeves is journalists writing about congress as if it’s always been the case that that minorities of senators would routinely filibuster every measure they didn’t like. Simple logic indicates that this is false—it used to require a unanimous vote to end a filibuster and, obviously, non-unanimous bills passed. But there are more examples. For example, before the 1970s you needed two-thirds of the Senate to end a filibuster, but the Lend-Lease Act went through the Senate on a 60-31 vote (according to the rules of the day, you would have needed 66 as there were only 98 Senators) without the minority obstructing the bill.
Thus, filibuster supporters are objectively pro-Nazi. Well, okay, they’re not. But it reminds us that routine filibustering is a new tradition and not a time-honored principle of American government.
19 Responses to “Filibuster Fact of the Day”
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March 18th, 2009 at 3:30 pm
Actually, Matt, my understanding is that before the 70s you needed two thirds of those present and voting to invoke cloture. Although 60/91 is less than two thirds, anyway.
March 18th, 2009 at 3:30 pm
You should also point out that until recently pretty much the only bills that were filibustered were those that gave rights to black people. You know, just to have the correct framing.
March 18th, 2009 at 3:31 pm
Also, weren’t there only 48 states (and presumably 96, not 98 Senators) at the time of the Lend-Lease act?
March 18th, 2009 at 3:44 pm
What would it take to end routine filibustering?
Could the majority party end it unilaterally?
March 18th, 2009 at 3:47 pm
It requires 2/3 of present (not seated) Senators to change the rules.
March 18th, 2009 at 3:50 pm
“Actually, Matt, my understanding is that before the 70s you needed two thirds of those present and voting to invoke cloture.”
That’s mostly true (it wasn’t during the 50s, I believe). And it makes a big difference. By only requiring a supermajority of those present, the burden lies on those trying to sustain the filibuster to actually show up for cloture votes. The current rules mean that only one person supporting a filibuster must be present while everyone seeking cloture has to show up. It would be nice if we could go back to the “those present” system, but that would take 2/3 of the Senate to pass. Not going to happen.
March 18th, 2009 at 3:53 pm
I think the point in comment 1 is the key one. In the old system you only needed 1/3rd to keep a fillibuster going, but they all needed to be be present in the Chambers the whole time or the number needed for 2/3rd to end it would drop. Today you need 40% for the fillibuster, so in theory it is harder, but they don’t need to actually be there so it makes it pretty easy to keep one going.
March 18th, 2009 at 4:02 pm
Ah yes Matt the media should now describe a filibuster as Obama hating antidemocratic obstruction yes?
The only problem with your outrage is the obvious fact that both parties continue to find the filibuster a useful tool even if it was not blessed by our founding parents.
And is that to be the new yardstick? Did something have to obtain Jefferson’s imprimatur before we can consider it a valid democratic republican development?
Talk about mindless strict constructivism.
March 18th, 2009 at 4:15 pm
In the November 1926 Congressional Digest they list the “outstanding Senate Filibusters” between 1841-1923 – there were 26 (though they didn’t say full list). Mentions the 1863 filibuster relating to the suspension of writ of habeus corpus, the 1902 successful filibuster to stop the admitting Oklahoma, Arizona, and New Mexico and the 1922 successful filibuster against an anti-lynching bill.
The Senate web page has a pdf of a CRS report though there are no number. However, procedures/customs may have changed or finessed and that had an impact. They have this about the Cloture Rule of 1917 that says “By 1915, the Senate had become a breeding ground for filibusters.”
Senate Reference has a filibuster page.
March 18th, 2009 at 4:19 pm
How is it that senators had the ability to stop legislation they didn’t like but decided not to. I agree that the filibuster is stupid, but I would have been pretty disappointed if Democrats had not used the filibuster to stop drilling in ANWR. My guess is that Senators used the filibuster sparingly because they were afraid that if they used it to much, it would eventually be taken away from them. When the threshold was reduced to 60 votes that paradoxically strengthened the filibuster because while people can’t accept legislation requiring 100 votes to pass they seem to be willing to accept 60. Increasing the threshold back to where it once was might be a good way to curb its use.
March 18th, 2009 at 4:50 pm
You get similar reporting on “In God We Trust”, on money, and “Under God”, in the pledge of allegiance. As if it has always been that way
March 18th, 2009 at 5:41 pm
the media reports on the filibuster ?
March 18th, 2009 at 5:45 pm
Only 19 more months until November 2010.
March 18th, 2009 at 5:59 pm
Filibusters may not be the best thing for American society, but when done right (i.e. reading out of the phonebook, relieving yourself behind a curtain) they can be bloody hilarious.
March 18th, 2009 at 6:07 pm
Craig,
I think it basically worked like MAD between the US and USSR during the cold war.
March 18th, 2009 at 6:21 pm
Did something have to obtain Jefferson’s imprimatur before we can consider it a valid democratic republican development?
Talk about mindless strict constructivism.
As Jefferson was not involved in the devising of the US constitution, this veers wildly away from the point.
March 18th, 2009 at 9:56 pm
Basically it’ll take a restoration of a GOP senate majority to then go ‘nuclear’ before we ever get rid of this.
I saw the use of the filibuster when it was being used to block Alito — but we see how well that went down.
In any case, the Dems won’t change the rules. It’s a GOPer specialty.
March 18th, 2009 at 10:53 pm
It requires 2/3 of present (not seated) Senators to change the rules.
Actually I believe it takes 2/3 to cut off debate on a rule change (see the second paragraph of section 2 here). That is, two-thirds to break a filibuster on changing the filibuster. No difference in practice, though.
March 19th, 2009 at 8:23 am
I have no trouble against a filibuster per se (that there should be some body with the ability for small minorities to say, stop, as a “nuclear option”). However, it is clear to me that not requiring physical presence was a bad idea. If they want to use the nuclear option, make them stay up all night.
I have a feeling that there was another issue concerning the use of Southern filibusters. In the old days, when the South was solidly Democrat, and when the rules gave a lot of power to seniority, the Southern senators (who tended to be elected for life) tended to control a lot of the committees (those seniority rules). So, if there was a filibuster on some civil rights law, I bet committee work largely stopped too, which would give it more weight. I would be curious to hear from old Senate hands on this.