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How Do You Kill the Filibuster?


I'm not sure whether the filibuster is actually unconstitutional. In any case, I don't think it's really the relevant question. The filibuster shouldn't be disqualified. It should be dismantled.

But what conditions would make that possible? I can primarily think of one: An enormously popular initiative with significant public support is being filibustered by a minority that's totally out of touch with public opinion. That doesn't seem very likely to me. Any initiative that popular wouldn't be filibustered.

The likelier outcome, I think, is that Congress will dismantle the filibuster when it realizes that the filibuster is making it less relevant. If you look back at the financial crisis, the lead response came from the Federal Reserve, because everyone understood that Congress couldn't move quickly enough. If you look at global warming, there's considerable pessimism that the Senate will be able to pass cap-and-trade, and many expect the Environmental Protection Agency to simply embark on its own campaign to regulate carbon emissions. If you look at health care, ideas like the Federal Health Board or the Independent Medicare Advisory Committee are an explicit effort to entrust the continual process of health-care reform to a more agile body than the Congress.

On issue after issue, the gridlock encouraged by the filibuster is not simply promoting inaction, but extra-congressional action. After all, the fact that Congress cannot solve problems does not mean the the problems don't need to be solved. And there are other avenues for action. The judicial system. The executive branch. The Federal Reserve. Ad hoc agencies meant to make the decisions Congress cannot. An angry Congress could block these changes. But the majority doesn't want to block these changes. They want action on these problems, even if they can't be the actors. So they permit these second-best outcomes that address the issues, but do so by shrinking Congress's authority.

That's not a very good situation, of course. It's less accountable, for one thing. And it's less efficient. Congress has all sorts of powers that the executive branch and outside agencies don't have. This makes for solutions of a very complicated and strange type. Regulating carbon through the EPA is much worse than pricing it through cap-and-trade. But imperfect solutions are better than no solutions. Eventually, however, I imagine Congress will want to get back into the solutions game, and won't like the fact that its authority has been systematically curtailed. And that will require restoring its capacity to act.

Photo credit: AP Photo/J. Scott Applewhite.

By Ezra Klein  |  August 6, 2009; 12:12 PM ET
Categories:  Congress  
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Not sure I get your point. When Congress wants to get back into the solutions game, won't they just, you know, start playing it by passing legislation? I mean, if they have the votes to change the filibuster rule, presumably they'd have the votes to pass laws, wouldn't they? Why will they then suddenly see fit dismantle the filibuster?

Posted by: NealB1 | August 6, 2009 12:20 PM | Report abuse

It's a collective action problem. Neither side can pass legislation unless they both agree that it's better for everyone to pass legislation. You'll need the problem to get bad enough that Congress begins advocating the itnerests of Congress, as opposed to one or the other of the parties.

Posted by: Ezra Klein | August 6, 2009 12:33 PM | Report abuse

Neal, the Senate is not a hot-bed of democracy, just the opposite. There are 100 Senators, it takes 51 to pass legislation, 60 to end a filibuster, but 67 to change rules, such as the various filibuster rules (many of which aren't really even rules, just traditions).

The bottom-line is it would take significant bipartisanship to change rules, and Ezra's observations are spot-on.

Posted by: 13joe85 | August 6, 2009 12:37 PM | Report abuse

You underestimate the capacity of the Senate to consider itself "still relevant" even when it fails at its basic function as a legislative chamber.

After all, legislative craptown does not prevent a senator from appearing on the Sunday shows. It might piss off the House, but since when has the Senate cared about what happens on the other side of the Capitol?

Posted by: pseudonymousinnc | August 6, 2009 12:41 PM | Report abuse

Ditch the filibuster AND the use of the anonymous hold on a bill. If you feel strongly enough to hold-up a bill, have the guts to let everyone know who you are.

Posted by: jckdoors | August 6, 2009 12:58 PM | Report abuse

Here's another potential scenario:

You get a group of senators that's really willing to fight for the greater good, and they force the filibustering senators to actually debate non-stop, old style, like in Mr.Smith Goes to Washington.

This will shut down the senate and bring massive public attention and education to the problem. It also may cause a lot of embarrassment to the filibustering senators.

How do you think this would work and play out Ezra? You're the one with the Washington Post prestige. You can get top senate lawyers to answer your phone calls and questions. You can really learn about this issue and then educate your readers.

Posted by: RichardHSerlin | August 6, 2009 1:44 PM | Report abuse

Our last best chance to end it was in 2005 when the Republicans were threatening the "nuclear option". If the Dems had any balls or foresight, they'd have called them on it and maybe we'd be rid of this asinine rule forever.

Posted by: ejp1082 | August 6, 2009 2:13 PM | Report abuse


Your average congresscritter would like nothing better than to be in a situation of apparent power but at the same time not being responsible for anything. Filibuster + outside agencies = euphoria.

Posted by: pj_camp | August 6, 2009 2:26 PM | Report abuse

Wow, everyone's overthinking this. The filibuster will be overturned as soon as the Republicans take back the presidency and Congress and the Democrats attempt to block a halfway important nominee or bill. Give the Republicans a reasonably popular president and a Senate majority, and they'll waste no time in Nuclear Optioning the rule off the face of the earth. The Gang of 14 only forestalled this because no one cares about appellate-court nominees; if there's even the slightest opening for Republicans to demagogue on an issue, they'll take it and run all the way to the end zone. And that will be the end of the filibuster.

Posted by: fumphis | August 6, 2009 2:46 PM | Report abuse

Congress did jump up and act quickly on the financial crisis last year, passing EESA.

Posted by: tomtildrum | August 6, 2009 3:38 PM | Report abuse

you argument can be strengthened. When discussing the fact that the congressional majority can be blocked by a congressional minority you oddly write "An angry Congress could block these changes. But the majority doesn't want to block these changes. "

Even if the majority wanted to block those changes, 41 senators could keep it from blocking those changes.

I'd say a serious problem is that Republicans assume that, in the natural order of things, The President is a Republican and the Democrats control at least one house of congress.

They don't seem to have had any objection to Bush dismantling the constitution. I think it will take more than 4 or 8 years of a Democrat in the White House to convince them to support the constitutional role of congress.

Posted by: rjw88 | August 6, 2009 4:27 PM | Report abuse

I agree with RichardHSerlin above...
whatever happened to making a filibustering group of senators, you know, actually filibuster?

I think the real problem is spineless leaders like Harry Reid letting the minority get away with the (anonymous, usually unnoticed) "threat" of a filibuster. If the Senate is going to persist in this tradition, at least call the bluff once in a while and force the minority to actually face the consequences of a full Senate shutdown if they feel so strongly about a particular vote – not to mention demonstrate they have the stamina/will to go through with it.

Historically, the filibuster was considered a last-ditch effort to *delay* a vote, not abort it before any kind of debate can take place. The Constitution specifically denotes which situations require a two-thirds vote for a reason; it was assumed everything else could pass by majority.

I know the Senate is supposed to be somewhat antimajoritarian (they weren't even popularly elected for quite some time), but setting 60 votes as the standard for even routine votes is ridiculous and unduly amplifies the Founders' anti-populist measures.

Posted by: Cyco | August 7, 2009 12:01 AM | Report abuse

I'd like to return to the rule where you had to be on your feet & talking to keep a filibuster going. It wasn't undertaken lightly and couldn't go on forever. And it had entertainment value.

Posted by: debb1 | August 7, 2009 1:34 AM | Report abuse

I would be curious to know what the (And I'm nor wording this correctly) minimum percentage of the population required to *support* a filibuster has been over the years.

It seems to me that has changed - the Senate was of course always intended to make less populated states have an equal say with larger states, and the filibuster leveraged that to an even greater extent, but I'd love to know whether or not the percentage of population required to support the 40 votes required to enforce a filibuster has actually gone down, or if it merely seems that way.

If it merely seems that way, I think it's probably worth preserving. if it has actually gone that far down, then we need to do something about this.

Of course, if the Dems had had the guts to stand-fast against the 'nuclear option' several years ago, this would be a lot simpler. Instead they let themselves 'save' a filibuster power they were too terrified to use, and now it's being used by the GOP every chance they get a democrat to side with them.

Sigh - Jonnan

Posted by: Jonnan | August 7, 2009 5:57 PM | Report abuse

You know when Congress will be serious about reclaiming its rightful place in policy debate: when they demand to be the sole Constitutional arbiter on when we go to war and engage in military force.

Posted by: pk2031 | August 10, 2009 9:26 PM | Report abuse

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