Defending the Dinosaur:  The Case For Not Fixing the Filibuster

by BILL FRENZEL
Brookings Review, volume 13, number 3 (Summer 1995): 46-49 

Defending the filibuster may not be quite as nasty as taking candy from a baby, but neither is it a good route to popular acclaim. Few kind words are ever spoken in defense of filibusters. Conventional wisdom and political correctness have pronounced them to be pernicious. The very word is pejorative, evoking ugly images of antidemocratic activities.

During the last biennium, filibusters became so unlovable that a group, including former senators, formed "Action, Not Gridlock!" to try to stamp them out. The public, which had tested both gridlock and action, seemed to prefer the former. The organization disappeared.

As that public reaction suggests, political correctness is a sometime thing and conventional wisdom oft goes astray. The American public may not be rushing to embrace the filibuster, but neither has it shown any inclination to root it out. The Senate's overwhelming vote earlier this year against changing the filibuster means that the practice won't go away soon, so it is worth examining. Despite its bad press, the story of the modern filibuster is not one-sided.

Filibusters, the Constitution, and the Framers

Filibuster haters claim they are contrary to the spirit of the Constitution because they require extraordinary majorities. The rationale is that the Framers, who created a majority system and rejected supermajorities, would be horrified by filibusters. Perhaps, but don't be too sure. Remember that no one has dug up a Framer lately to testify to the accuracy of this theory.

The Framers created our system based on their profound distrust of government. They loaded the system with checks and balances to make it work very slowly and with great difficulty. Their intention was to prevent swift enactment of laws and to avoid satisfying the popular whimsy of each willful majority. Maybe they would trade popular election for a filibuster rule.

Without any live Framers, we can only speculate about their feelings. However, it is hard to believe that, having designed an extremely balky system, they would want to speed it up today. More likely, they would merely remind us that for more than 200 years major American policymaking has been based on "concurrent majorities" anyway.

Parliamentary Comparisons

Most of the parliaments of the world are copies, or variants, of Westminster. With only one strong house and no separated executive branch, they can usually deliver laws swiftly. But when their actions affront public opinion, there is a political price to be paid, often very quickly. The government that offends the people soon becomes the opposition.

In our regional system, our majorities, assisted by a wide range of taxpayer-paid perks, do not usually pay any price. Our members of Congress are unbeatable (even in the earthquake of 1994, more than 90 percent of them who sought reelection were reelected). Our majorities are not eternal, but they are long-lived, unlike the Westminster forms.

It might make sense to consider trading the filibuster for congressional mortality (perhaps through term limits), but it is probably unwise to accept the blockbuster majority power of the Westminster system without accepting its balance of political turnover in return.

Actually, filibusters are not unique to the United States. Other parliaments are finding new opportunities for dilatory practices. The Japanese upper house recently presented its "ox-step," and an appointed majority in the Canadian Senate frustrated the intentions of the prime minister and his government on the ratification of the U.S.-Canada Free Trade Agreement. The strokes are different for different folks, but we are not alone. Delay is a time-honored political exercise that transcends political boundaries.

The Filibuster and the Popular Will

The filibuster has been often indicted for denying the popular will, but over recent history, that point is hard to demonstrate. In the first place, it is not easy to get, and hold, 41 votes in the Senate under any circumstances. It is practically impossible to do so against a popular proposal. Filibusters simply do not succeed unless they have popular support or unless there is a lack of enthusiasm for the proposal being filibustered.

In 1993 Senator Bob Dole (R-KS) led a filibuster against the Clinton Emergency Spending Bill. It succeeded because the public liked the filibuster better than the spending. In the Bush years, Senator George Mitchell (D-ME) stopped a capital gains proposal by threat of filibuster. Senator Mitchell succeeded because the people saw no urgency in the proposal. In both cases, political reality prevailed.

If the public wants a vote, it tells its representatives. In 1994 Senate Republicans tried to filibuster the Crime Bill. Based on hot flashes from home, more than 60 senators perceived that the bill was popular, so the filibuster was broken quickly. The same thing happened to the Motor Voter Bill, the National Service Bill, and five out of six presidential appointments. If any proposal has substantial public support, a couple of cloture votes will kill the filibuster. The political reality is: frivolous filibusters do not succeed. The modern filibuster can gridlock ideas that are not popular, but it has not gridlocked the people.

The Bicameral System

In our unique system, the two houses of Congress have developed similar, but not identical, personalities and processes. The House of Representatives, with 440 orators, is harder to manage and has therefore created a set of rules to limit debate. In recent years, its majority has handled bills under rules that permitted few, if any, amendments and only an hour or two of debate.

The Senate, with only 100 orators, has stayed with free debate and an open amendment system. That is not a bad division of process. One house has been too closed, the other too open. The House operates with the relentlessness of Westminster majority, and the Senate has more time to examine, to delay, to amend, and, if necessary, to kill. All are vital functions of any legislature.

The new majority in the House are pledged to operate under more open rules than their predecessors. They have done so. Even so, they have had to move their program, so debate and amendments have still been subjected to some limitations, less than the old House, but still much more than the Senate.

There is still a relatively open pipeline for bills flowing from the House. Nine out often "Contract" bills is a strong showing of majority power. Following the Framers' wisdom, it is prudent to have a sieve in the Senate to compete with that open pipe in the House. At least some of the worst legislative lumps may be smoothed out in the finer mesh. Only if unlimited debate and amendments were guaranteed for all House bills would it make sense to kill the Senate filibuster.

Key to Compromise

Many filibusters are not filibusters at all, but merely threats. Most are undertaken to notify the managers of the proposal that problems exist. They are a signal from a minority to a majority that negotiations are in order. Sometimes the majority tries a cloture vote or two before negotiating. Sometimes it negotiates. Sometimes it does not.

Most of these procedures end in a modified bill, not a dead bill. The Crime Bill noted above passed. The Dole filibuster of emergency spending did not prevent passage of many of its bits of pork in regular appropriations bills. The old Mitchell capital gains filibuster will no doubt be picked up by Senator Daschle (D-SD) this year. The predicted result will be some sort of negotiated agreement.

The filibuster surely gives a minority a little more clout, but it does not prevent a majority from passing reasonably popular proposals. It gives a minority the opportunity to negotiate what it believes is an intolerable proposal into one it can live with. That compromise may serve the needs of the majority tolerably well too.

No Need for a Heavy Hand

One political reality test for the filibuster is the congressional ingenuity in finding ways to avoid it when necessary. Trade and Reconciliation bills are considered under laws that obviate filibusters. When there is a good reason to finesse the filibuster, the Senate always seems to get the job done.

Many other Senate rules, only dimly understood by common folks, reduce the legislative pace. I do not mean to bless multiple efforts to filibuster the same proposal. Once on the bill and once on the conference report is enough. Unlimited amendment after cloture is also too much opportunity for mischief.

Former Senate Majority Leader Mitchell has left constructive proposals to speed the work of the Senate without damaging the filibuster. They ought to be considered. The minority needs rights for protection. The majority needs the ability to move its program. Both needs can be well served by the modern 60-vote cloture rule. It should not be changed.

Keep the Filibuster

The test of the filibuster ought to be whether it is fair, appropriate, and constructive. It may have been a killer in the old days, when it slew civil rights bills, but under the new 60-vote system, it is difficult to recall a filibustered proposition that stayed dead if it was popular.

Most antifilibuster noise comes from advocates of ideas that were going to fail anyway. It is not essential for every idea that comes bouncing up or down Pennsylvania Avenue to become law. The filibuster is a useful legislative tool, consistent with the goals of the Framers, that keeps whimsical, immature, and ultimately unpopular bills out of the statute books.

Both houses have new majorities this year. The House Republican majority has already enhanced minority rights. The Senate majority has protected its minority as well by defeating a proposal to eliminate the filibuster. That vote may come back to bite the Republican majority, particularly on capital gains legislation. But for our centrist American government and its centrist electorate, it was the right thing to do.

Bill Frenzel is a guest scholar in the Brookings Governmental Studies program. He served in the House of Representatives (R-MN) from 1971 to 1991.