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The New Filibuster

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"The New Filibuster"

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Kevin Drum raises an important point, namely that “The filibuster was never intended to become a routine requirement that all legislation needs 60% of the vote in the Senate to pass.”

Indeed, the filibuster was never intended at all. A few years into the existence of the U.S. Senate, they undertook a review of their rules. A determination was made that the motion to end debate was unnecessary, so it was removed from the rulebook. The Senators who made that decision suffered from a lack of imagination, because they didn’t see that having stripped it from the rulebook they’d created a situation in which a minority could block action on legislation. You can tell they didn’t intend to do that because there was no filibustering for a while. But under this second rule-set, in principle a minority of one could block legislation.

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Again, it obviously wasn’t the intention to implement a unanimity rule for the Senate. Eventually, that was changed to allow a 67 vote supermajority and then later a 60 vote supermajority to end a filibuster. But still, even when that last reform was implemented in the mid-1970s the idea wasn’t to create a routine requirement that legislation receive 60 votes.

But as we can see in the chart on the right, there’s been over time a steady increase in filibustering. Democrats were feeling chastened after the 2002 and 2004 elections, so filibustering dipped somewhat in those congresses while still staying high above the levels that has persisted in the 1980s. The result now is that you’ve started hearing talk about how you “need 60 votes” to pass something in the Senate, rather than saying that you need 50 votes and also that a minority might engage in the extraordinary measure of filibustering.

None of this has ever been a good idea. But when it was genuinely reserved as an extraordinary measure, it was a bad idea whose badness could be overlooked. But as it’s become a routine matter, it’s become a bigger and bigger problem. It needs to be reformed. If need be, perhaps the Senate could agree to some kind of phase out. Pass a measure in the 111th congress saying that there will be no filibustering starting with the 113th congress. That would avoid the sense that the reform was a mere power grab.

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