In this week’s BVA Happenings, BVA Deputy Director of Government Relations Alek Libbin offers a few observations on the increasingly controversial U.S. Senate Filibuster. 

Those of us who have followed, even just peripherally, the doings of our United States Congress during the past 20-30 years may well have asked ourselves: Why don’t they do anything? Is it partisanship, or is it just laziness, or does it have something to do with campaign financing, or is it due to the power of lobbyists? 

When seriously considering the reasons for the lack of Congressional action and legislative accomplishments, it becomes clear that the root causes are a combination of all the factors mentioned in the questions above. 

Compounding the delays and failures to introduce legislation, push it through committees, and then vote on and pass certain bills is still one more variable—the Filibuster, the easiest tool to stop progress on a bill in the Senate. 

The Senate Filibuster came about on the premise that, for as long as there are ideas to be debated, there should be no limit on debate. The premise was a noble and well-intentioned stance that both chambers adopted until 1847, when the House abolished it and implemented time constraints on debate. Originally, the Filibuster was an extreme measure that was employed only in the most important matters for a Senator. The first bill to be filibustered in the Senate was in 1789 when Senator William Maclay wrote: “design of the Virginians… was to talk away the time, so that we could not get the bill passed.” The longest filibuster occurred in 1957, lasting 24 hours. 

Originally, the House Filibuster required the speaker to stand and speak. Now, in the Senate, threatening to implement it is enough to halt progress. It’s like having a dog that bites—everyone sees the dog, everyone knows the dog is there, and the mere threat of bringing the dog clears the park. 

The Senate did not implement the first limitations on the Filibuster until 1917 when cloture was introduced. Cloture allowed a filibuster to be stopped if two-thirds of the chamber agreed to halt it. In 1972, the threshold was lowered to three-fifths. In 2013, the threshold for judicial nominations (expect Supreme Court nominees) was lowered to a simple majority, and in 2019 the exemption was expanded to include Supreme Court nominees.  

Now, you may be asking, how can one Senator stop something if the rules state you need at least two-fifths plus one to enable a filibuster? The answer comes from the fact that the Senate operates mostly on unanimous consent to conduct business. If a Senator does not give consent, it is taken as a threat of Filibuster should the bill move forward. This is often enough to stop the progression of a bill. For example, Senator Tommy Tuberville (R-AL) has just this week halted military appointments and promotions by opposing unanimous consent out of objection to the Department of Defense’s reproductive health policies. Within the process of unanimous consent, he has essentially stopped these appointments and promotions. 

The Senate is historically different from the House. The House can be metaphorically compared to a rowdy bar and the Senate to a Country Club governed by rules to behave in a mild-mannered way. The longer terms of office and the smaller body are factors in the greater cordiality. We see this decorum in most committee hearings and, while members of both chambers still take shots at each other, the House members do so more frequently and with more potency.  

Members of the Senate are often seen laughing, making friendly conversation, and are often friendly with one another outside the chamber. This mutual friendliness is part of the reason the Senate has been able to retain the Filibuster, the other part being that the majority party fears that one day they may once again be in the minority and thus have no means for halting the movement of a bill.