Consider this: fifty years ago, over a two-year session of Congress there was exactly one cloture motion filed, the motion the Senate files to ask for a vote to end a filibuster. Twenty-five years ago, there were 41 motions filed. Last session, there were 139 motions filed. The Senate is already on track to set a whole new record for the 111th Congress.
I don't bring this up just because I lean to the left and Republicans are responsible for the most recent uptick in filibuster threats. Health care is exactly the kind of legislation Republicans should filibuster. It's a fundamental change in an important part of our society and, even though I think it's a good idea, Republicans should demand to be brought to the negotiating table. But if Republicans regain a majority of the Senate in 2012 or 2014, their current misuse of the filibuster means Democrats will misuse it too. The filibuster is going to quickly end up turning the Senate into a "supermajoritarian" body that it was never meant to be.
The filibuster exists because the Constitution allows each legislative chamber to set their own rules. Both the House and the Senate allowed for unlimited debate in their earliest years. As the House grew in size, they had to limit the amount that every member could speak, but the Senate never grew to such a size that debate had to be checked. For more than a hundred years, Senators could simply talk for as long as they wanted, sometimes filibustering to slow down a specific bill.
In 1917, the infamous Rule 22, the cloture rule, was put down in the Senate rulebooks at the urging of Woodrow Wilson. Rule 22 allowed at least 16 senators to sign a petition to end debate on an issue on the Senate floor.
A day after the petition was handed in, a cloture vote was taken. Until 1975, 67 Senators had to vote for cloture to end debate and vote on a bill. This version of the filibuster, when Senators actually talked endlessly on the floor, led to such historical moments as Strom Thurmond's 24-hour-and-18-minute filibuster against the Civil Rights Act of 1957. When the Democratic Party had 61 votes in their caucus in 1975, they changed Rule 22 from 67 to 60 votes. And 60 votes is the "supermajority" that any bill needs to overcome a filibuster today.
There are good and defendable reasons to keep the filibuster. First off, it gives the minority party at least one real tool to stop legislation. Every other part of the legislative process, subcommittees, committees, and the House requires a simple majority.
The filibuster is the only thing stopping the tyranny of the majority from defining the legislative process. No majority has so far been brazen enough to do away with the filibuster altogether because they know how likely it is that their party will be in the minority again one day.
But better than that, as W. Lee Rawls discusses in his book "In Praise of Deadlock," the filibuster is also the only form of institutionalized bipartisanship that bills go through. It's the only time that the majority is required to stop and ask the minority what they think. It might slow down important and needed legislation sometimes, but over the long haul it ensures that legislation that does get passed is not at the whim of the majority or the moment.
Bipartisanship only exists when it has to. If I write a bill that I believe to be great legislation for America, why would I consult with those that I know disagree with me?
Unless I can't get the votes in my own party, there isn't anything forcing me to ask the other party what they think. The filibuster sets a threshold on important bills that force the majority to bring the minority to the negotiating table.
All of this is well and good except that more and more is getting filibustered every session. If you chart the number of cloture votes since 1917, you effectively get an exponential curve. Extend the line and the only conclusion to make is that soon everything will require 60 votes. The filibuster, an unintended consequence of ensuring unlimited debate in the early Senate, is changing our upper chamber into a "supermajoritarian" body.
Why is that a problem? For starters, our Founders never intended it that way. Thomas Geoghegan aptly pointed out in his January 10 New York Times article, "Mr. Smith Rewrites the Constitution," that there are a number of good arguments for why the filibuster might be unconstitutional.
For example, Article I, Section 3 of the Constitution reads, "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." How could the Senate ever be equally divided if everything requires a 60-vote supermajority?
The Constitution explicitly requires more than a majority in the Senate on rare occasions, like when ratifying treaties or overriding a presidential veto. When Hamilton had to defend these supermajorities in the Federalist Papers, Geoghegan points out that he did so "at length and with an obvious sense of guilt over his departure from majority rule."
But more than that, we simply shouldn't hamstring the Senate and majority so fundamentally. An election should mean something. There's a real—though often hard to distinguish—difference between filibustering major legislation and filibustering everything simply because you can.
To fix the problem, perhaps the Senate should start actually filibustering. Rather than letting party leadership vaguely threaten a filibuster anytime they want to, require real Senators to sit on the floor of the Senate and spend their own time and political capital extemporaneously decrying a bill. If a bill is so awful that it's worth robbing the Senate of a majority vote, then someone should be losing time and sleep over it.
What really needs to happen is a mood shift. Senators need to protect and venerate the filibuster in the same way they do reconciliation today. Reconciliation is the one way to circumvent the modern filibuster. It was created in 1974 and can only apply to budget bills or bills that have a significant effect on spending. A bill that goes through the reconciliation process only requires 51 votes to pass. Calls to use reconciliation on health care have received bipartisan resistance because Senators don't want to set a precedent that misuses it. We need the same sort of sacred attitude toward the filibuster.
If Senators, and generally the minority, treated the filibuster as a tool only to be used a handful of times a year for the most critical votes, the Senate would be a better institution. There is a real history of bipartisanship in the Senate to work with the president and the House to pass legislation that no minority, or majority, should forget. Reagan's tax cuts. Clinton's Brady Gun Act. Bush's No Child Left Behind law.
You might think some of those laws were bad policy, but they all passed with bipartisan support in the Senate. The legislative and executive got together to make the best laws that they could. It has happened in the past and it needs to be happening today.
Senators could continue their current attitude and force every bill to have 60 votes. Maybe we need real, complete stalemate before Senators will agree to stop demonizing each other and make a good faith effort to work together.
The problem is not going away. As Republicans use the filibuster to block a greater percentage of votes than ever before, they set a bad precedent for Congresses to come. And Democrats did their own share of obstructionism before they retook the majority in 2006. Both parties have to come together to both stop abusing legislative rules and start governing effectively.