How and Why the Senate Must Reform the Filibuster 2

The following [How and Why the Senate Must Reform the Filibuster, by Tom McClintock] is adapted from a speech delivered on January 11, 2017, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

Some in the new Congress have set a positive tone, but we have also heard reactionary elements vow to thwart the popular mandate. It is natural for the minority to use every available means to try to change the majority’s mind or temper its fervor, and our system offers it many ways to do so. But that’s different from obstruction, which is why these vows by some senators are as disturbing as they are credible.

They are credible because the modern Senate filibuster has become a tool for the minority to block any meaningful legislation from being enacted or even considered. Given its record of abuse in recent years—by both parties—the Senate needs to repair its rules regarding the filibuster if it is to have any hope of performing its constitutional duty.

The parliamentary tactic of a minority thwarting the will of the majority by talking a bill to death is nothing new. The Roman Senate’s rules required business to conclude before sunset. Cato the Younger discovered that he could block Julius Caesar’s initiatives by talking until dusk descended on the Senate chamber.

Caesar responded by throwing Cato in jail. Common parliamentary practice dealt with the tactic by allowing a motion to “order the previous question”—in other words, to close debate and vote—often requiring a two-thirds vote. This super-majority threshold to close debate is rooted in the principle that a significant minority should be able to extend debate. After all, a minority exists to convince the majority to its way of thinking and often identifies flaws in a proposal that a majority doesn’t see in its rush to adopt. This is the fruit of deliberation and the essence of deliberative assemblies.

But this parliamentary principle assumes that there is an actual debate, that it is germane to the subject at hand, and that it is not conducted in a manifestly dilatory manner.

Within a few decades of the Amer­ican Founding, senators rediscovered Cato’s practice of killing a bill by killing time, and the Senate filibuster was born. Yet it was rarely used because of its natural limitations. A filibustering senator had to remain for the most part at his desk and on his feet. In 1908, for example, Robert La Follette of Wisconsin held the floor for 18 hours—speaking for long periods of time, and demanding dozens of quorum calls and roll-call votes—to stall a banking reform bill. The bill eventually passed, but not without significant consternation on both sides, due to the fact that until the filibustered matter was disposed of, the Senate could not move on to other business.

This is Part Two of a multi-part series. Keep watch for the next installment!

Tom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.