At 1:17 in the morning on February 24, 1988, when Mitch McConnell was still a young senator and Chuck Schumer was serving as a representative in the House, Capitol Police forcefully removed Sen. Bob Packwood from his barricaded inner office and delivered him feet-first into the Senate chamber. Republican senators seeking to obstruct campaign finance reform had strategically fled the Senate, leaving it with no quorum, on the verge of adjournment; Senate Majority Leader Robert Byrd, desperate to save the Senate from closing, instructed the sergeant-at-arms to compel absent senators’ attendance. Speaking on the floor, Byrd, dressed in a three-piece suit, fiddled with his glasses as he delivered a suave, genteel speech praising his recalcitrant colleague for his smile and thanking him for helping create a quorum — albeit under duress.
“I did not come fully voluntarily,” Senator Packwood quipped, grinning. “Let me simply say I’m transferring the colors to another ship and shall fight on in another fashion.” And fight on he did, together with his Republican colleagues, mounting a 53-hour filibuster until the Senate adjourned, ultimately blocking the legislation he so strongly opposed.
For former Senate parliamentarian Alan Frumin, whose task was to act as the final “referee” about Senate procedure, that 1988 incident is not remembered for the ludicrous image of Packwood’s entrance to the Senate chamber, nor the unending Republican speeches. Instead, in an interview with the HPR, he recalled being holed up in his office for three days straight without showering (although he did manage to shave), because his job required him to remain close to the Senate’s action. And yet, despite the harrowing experience of staffing the Senate during a multi-day talking filibuster, Alan Frumin spent years defending the controversial procedure used to block legislation.
Then on January 6, 2021, Frumin frantically watched footage of insurrectionists breaching the Capitol ground where he had worked for decades, and saw a 30-second clip of a ransacked office — his office, the office where he slept during the 1988 three-day filibuster. That footage, which Frumin says makes his “blood boil” every time he views it, confirmed a years-long evolution in his thinking about the filibuster: “During my tenure, contained within [the Senate was] a critical mass of responsible adults cobbled from both parties who understood that yes, we can filibuster, but they exercised restraint … that critical mass of responsible adults has been replaced by a growing caucus of petulant infants.”
This change in thinking is representative of a broader shift among Democratic political leaders, as well as popular opinion, for filibuster reform. Today’s filibuster is markedly different from the filibusters of yore, and places an unprecedented hurdle before all legislation. Contemporary filibusters are especially problematic because filibusters are now incentivized under a “two-track system” for conducting Senate business and a hyper-partisan political atmosphere. Addressing the problem of a paralyzed Senate and assessing filibuster reform proposals requires understanding these two issues fully.
Two Tracks to a Broken Senate
In 1972, Senate Majority Leader Mike Mansfield inaugurated a new method of approaching Senate procedure, called the “two-track system.” Instead of restricting Senate business to one pending item at a time, he allowed the Senate to consider multiple pieces of legislation simultaneously. Before the implementation of the two-track system, filibusters blocked the entire Senate’s agenda, holding non-related bills hostage to the filibustered bill; two-tracks protected the Senate from being subsumed every time a senator decided to launch a filibuster on a bill they opposed.
The result of the dual-tracking was striking: the Senate could now function more smoothly, but many disincentives against filibustering were removed. Filibustering senators could now target their obstruction at the bill they disliked, without undermining the Senate’s entire agenda.
According to Catherine Fisk, a UC Berkeley Law professor who has written about the filibuster, who spoke in an interview with the HPR, “before the Senate adopted the two-track system, in order to prevent the majority from voting, a bunch of [senators] had to actually hold the floor, which meant, A, they were exhausted, and, B, they had to bear the political consequences of preventing the Senate from doing anything at all.” The two-track system indirectly created the “silent filibuster,” where senators merely signal their intent to obstruct legislation, bypassing the time-consuming charade of lengthy floor speeches.
The effects of Mansfield’s tracking system are quantifiable: before the two-track system, cloture attempts, or requests to cut debate, never exceeded seven per Congress; in 1972, the number of cloture attempts spiked to 24, and has risen since then. Last Congress, a record 328 cloture motions were filed.
Tom Jipping, a senior fellow at the Heritage Foundation, emphasized in an interview with the HPR that the number of cloture votes today is significantly greater than in the past, even after the two-track system was introduced: “In 1971, there were 20 cloture votes; in 2013, there were 218. The same two-track system was used, and yet, cloture votes were 10 times more. So then the problem is not Senate procedures, the problem is not Senate rules. The problem is senators.”
And therein lies the problem of the contemporary filibuster: a dangerous combination of Senate rules enabling obstruction and senators unceasing in their desire to obstruct. The contemporary Senate logjam occurs because blocs of senators realize their ability to veto majority-supported legislation and intense partisan divisions pit senators against each other, making legislators ruthless in their obstructionist techniques.
Compounding the Problem: Hyper-Partisanship
Partisanship derails prospects for most vital legislation in the Senate: voting rights protection, environmental legislation, and healthcare reform are among the most pressing issues facing America, yet the Senate cannot act because the two parties embrace diametrically opposed stances. Even after a rise in support for police reform following last summer’s racial justice protests, legislative talks on an anti-police brutality bill have faltered as the two parties cannot move past key issues. Partisanship has forced President Biden to pass much of his congressional agenda through budget reconciliation, an avenue for spending bills to bypass the opportunity to filibuster.
“Hyper-partisanship is a choice. It’s not inevitable. It’s not like the law of gravity … and it didn’t used to be that way,” Jipping stated, explaining why key legislation has stalled. Without nominal agreement between the two parties, crafting passable bills is a challenging feat.
Partisanship is so pervasive that the proportion of bills cosponsored by each senator that were introduced by a member of the opposite party is fewer than one-third; for many it was fewer than a quarter. With rampant partisan polarization, senators feel entitled to filibuster freely, impeding the Senate’s ability to govern. Fixing the Senate’s gridlock will require discussions that acknowledge this problem.
A One-Track Senate?
Professors Barry Friedman and Andrew Martin argued for a return to a single-track Senate in the New York Times in 2010, reasoning “filibusters historically broke when public opinion went against the Senate minority.” Their article — published the same month the Affordable Care Act was passed — correctly identified the introduction of the two tracks to Senate business as a watershed moment that changed the filibuster’s nature, yet their argument wrongly presumed senators would continue to be held accountable by the American electorate as they were in the past. Today, discussions about the filibuster must move past nostalgic memories when mobilizing public opinion to achieve consensus was possible to instead address hard realities about a polarized, segmented electorate.
Removing the two-track system would revive the talking filibuster and end the current practice of silently obstructing bills, raising the stakes to filibuster. Yet senators today might not cut back on filibustering, even if it exerted an intense physical toll.
“The idea behind the talking filibuster is, if you make them talk in order to filibuster, they will not talk. I think that presupposes that those who are filibustering would be embarrassed to do so under the bright lights of the TV cameras. I simply think that that’s an erroneous assumption,” explained Frumin.
Furthermore, a one-track Senate would mean filibusters freeze the entire Senate’s agenda. In the past, this worked as a disincentive against mounting too-frequent or too-time-consuming filibusters; today senators might not care about the consequence of their obstruction.
Imagining a hypothetical scenario where a Senate filibuster blocked a defense spending bill, Frumin envisioned, “If the leader says you have to pass this [other bill] in order to get the defense authorization bill, nothing will get done.”
A single-track system in today’s Senate would spell out “mutually assured destruction,” according to Jipping, who expects senators’ obstructive tendencies to continue regardless of the Senate rules. Under a one-track Senate, a majority party pushing a legislative priority would not pass any legislation whatsoever, which would be perceived by the minority party as a win, even if the impasse was overall destructive for the country.
The current hyper-partisan political atmosphere condemns the one-track Senate to disaster, pushing those worried about the Senate’s paralysis to confront the filibuster itself.
To Keep or Not to Keep?
Various proposals to reform the filibuster include abolishing the filibuster, changing the number of votes required for cloture, and carving out exemptions to the filibuster. All these ideas seek to facilitate lawmaking in the stagnant Senate by reintroducing majoritarian rule to the body, yet they neglect the fundamental polarization that hinders legislators today.
For Jipping, the filibuster promotes compromise and bipartisanship, bettering American government, and eliminating the filibuster will not address the deeper divisions soiling U.S. politics. “Senators are not bipartisan by nature … they have to be encouraged to be bipartisan by the way we set up rules and procedures,” he said.
Alternatively, some analysts reach the exact opposite conclusion about the filibuster’s effect on partisan divisions. Fisk notes that “votes should count … and democracy works best when both parties compete for support based on policy proposals.” A majoritarian Senate forces more engagement on every bill. Without the minority party’s ability to silently unilaterally veto legislation, the minority party would address the issues to senators and voters instead of resorting to hostile resistance, eventually lowering the Senate’s partisan temperature.
Ultimately, the question of overhauling the filibuster hinges on a gamble: Does the filibuster diminish or augment partisan rifts?
Some proponents of filibuster reform, however, reject this dichotomy and argue the benefits of filibuster reform outweigh the potential costs that change could incur. For example, Frumin is horrified by state attempts to restrict voting rights, and argues that such extenuating circumstances demand altering the filibuster, regardless of the consequences: “If it’s a question of defending the filibuster or defending the Republic, I kick the filibuster to the curb,” he explained.
The Senate is embroiled in a Catch-22, without a perfect solution: keeping both the filibuster and a two-track Senate means keeping the status-quo gridlock that prevents the Senate from passing important bills; returning to a one-track Senate would derail the Senate’s entire agenda as filibusters blocked Senate business; reforming the filibuster risks deepening partisan resentment; and looming attacks on voting rights threaten the Senate as a democratic institution, unless it can somehow muster the resolve to protect the franchise. What happens next to the filibuster will be key to what happens next to our republic — if we can keep it.
Image by Elijah Mears is licensed under the Unsplash License.
