Is the filibuster dead? Was last week’s Senate move “unprecedented”? Was it “unthinkable”? Did it ever deserve the hyperbolic appellation “nuclear option”? Did the media overreach when they used such language? The event was certainly significant in its effects, but not unexpected. What happened was that, on April 5, 2017, Democrats in the U.S. Senate filibustered the appointment of Neil Gorsuch to the Supreme Court. Normally, this would mean that a vote of 60 or more senators would be needed to end the filibuster and allow the appointment to proceed, but the GOP didn’t have the votes for that. Therefore, one day later, the Republican leadership decided to bypass the whole thing by changing Senate rules. Such a rule change only requires a majority of votes. Their embrace of this tactic, which Senator Trent Lott first referred to as the “nuclear option” back in 2005, means that the filibuster can no longer be used to block approval of Supreme Court applicants.
The media have repeatedly hyperventilated about these events. Admittedly, they tend toward exaggeration on many news stories these days, an obvious attempt to bump up ratings, and their bluster often distorts the story. In this case, in their nearsighted focus on this one so-called “historic” decision to bypass the filibuster, the news coverage ignored the issues involved in the Gorsuch nomination, and the previous gradual historical degradation of the filibuster and of Senate debate rules in general. They also tended to ignore the one truly unprecedented historic event related to the Gorsuch nomination. More about that later.
For many people (if they recognize the word filibuster at all) the term brings up images of Jimmy Stewart in the movie classic Mr. Smith Goes to Washington, with Senator Jefferson Smith (Stewart) standing behind a podium for 24 desperate hours attempting to block an appropriations bill and redeem himself. Similar popularized scenes in recent years have involved State Senator Wendy Davis on the floor of the Texas Senate and U.S.Senator Ted Cruz reading a book by Dr. Seuss. But, these days, those are the exceptions, not the rule. The filibuster is a pale ghost of what it used to be, and the most recent imposition of the “nuclear option” is only the latest small step in the decades-long decline of this once-powerful strategy.
First we should look at the historical reality. Some news coverage has chosen to defend the filibuster, and bemoan its decline, as if it were the key to a long and presumably honorable Senate tradition of extended debate and the primary tool supporting the rights and interests of the minority caucus. This can perhaps best be characterized as upholding a mythological ideal. The reality is that the filibuster has almost always been about blocking legislation, not about debating the issues, a fact that the wide-ranging irrelevancies of the Ted Cruz monologue clearly demonstrated. Outside of the filibuster, everyday debate in the Senate usually does discuss issues, but the intended audience is almost always the media, not the members of the body itself—if you take the time to view these speeches you will note that the floor of the Senate is almost always empty, and only the C-SPAN cameras are listening. As for protecting the interests of the minority group, there is some justification there, but it has most often been abused.
The decline of the filibuster goes back at least seven decades. Back before 1946 Senate debate could be extended indefinitely by one senator, or a group of them working as a tag-team. That year a bill against employment discrimination was blocked for weeks, and the Senate created a provision that debate could be ended by a two-thirds vote (a process called “cloture”). That was the system until the 1960s, when a series of filibusters by southern senators, including a 75-hour filibuster of the Civil Rights Act of 1964, inspired a move to allow the Senate to avoid lengthy shutdowns during extended debates. A rules change created a “two-track” system in which unrelated legislation could be assigned specific working hours separately from the filibuster legislation, allowing other business to be considered and other bills passed while the filibuster continued.
The effectiveness of a filibuster was further adjusted in two ways in 1975. The required vote for cloture was reduced to three-fifths (60 votes) rather than two-thirds, making it easier to end any debate. At the same time, the Senate began trying out an agreement that allowed non-speaking filibusters, and the “virtual filibuster” became a possibility, making it much less difficult for any senator to block legislation. Soon the “talking filibuster” was almost entirely a thing of the past, and the number of filibusters began to increase.
Admittedly, the increase in filibusters was not entirely due to the changes in rules. The past three decades have also seen a significant growth in partisanship. It is not only that the two political parties have widely differing political philosophies, which they do. It is almost impossible today to create a piece of legislation that can avoid strongly-held objections from one or more of the larger caucus groups within the congress. But the two parties also have increasingly worked to enforce party discipline for partisan gains. During the Obama presidency the Republican Party raised obstruction to a new and extreme level, refusing to allow legislation to be considered by the Senate if it had been passed by the Democrat-controlled House or if it was supported by President Obama. What they didn’t stop through employing a record number of virtual filibusters they accomplished by filibuster threats and other parliamentary obstruction. In Obama’s first two years, GOP senators blocked passage of 99 percent of the bills created in the Democrat-led House (cf., for example, my notes about GOP obstruction at that time). Note: That was before Mitch McConnell, the leader of the Senate GOP, made his infamous statement that his primary goal was to make Barack Obama a one-term president.
Both parties have also increasingly recognized the continuing influence of the third branch of government, the judiciary. A large number of the filibusters since 1990 have been aimed at judicial nominations, as each president has tried to put his imprint on the lifetime appointments within the judicial branch and the senators in the opposing party have done everything they could to obstruct as many of them as possible. The 2005 creation of the “nuclear option” concept and terminology was in response to repeated Democratic threats to block the approval of judges nominated by President Bush. That time it was avoided by a bipartisan agreement. Eight years later the situation was reversed, with Republicans refusing to consider any of President Obama’s nominations or to offer a compromise, and the Democrats went “nuclear”, in a limited sense, bypassing the filibuster for appointments of federal judges below the Supreme Court level.
Recognizing all of the incremental changes that have brought us to the current impasse and the gradual loss of the filibuster, if it can be called a loss, we must recognize that nothing more than a small and entirely predictable step has occurred in the Senate’s approval of Judge Neil Gorsuch. It was all but inevitable given the partisan divide and the results of the 2016 elections. The significance of this change to future decades will depend on the health and retirement decisions made by the current justices of the Supreme Court and the outcomes of the federal elections of 2018 and 2020.
However, that doesn’t mean that nothing significant or dramatic occurred in the attempt to replace Antonin Scalia. It simply means that the “nuclear option” was not such a phenomenon. There was in fact one unprecedented event (or non-event) that occurred, and that was the year-long Republican Senate decision to ignore President Obama’s selection for that position, a well-qualified (and relatively moderate) jurist named Merrick Garland. That was an unjustifiable and extremely divisive—and arguably unconstitutional—partisan activity. The media should feel shame for their lack of emphasis on that historic story during the months leading up to the November 2016 election, and all Republican members of the Senate—every one—should feel ashamed for their willing participation in that effort.