Is the Senate filibuster a useful emergency brake on the actions of legislative majorities, or is it a heckler’s veto that distorts the legislative process and prevents the effective functioning of government?
The 60-vote requirement to cut off debate isn’t in the Constitution. In fact, the opposite is true. The Constitution’s forerunner in 1781, the Articles of Confederation, required the approval of nine of the thirteen states to pass a law, but that supermajority provision was conspicuously absent from the document hammered out at the convention in Philadelphia in 1787 after the Articles were replaced.
We often hear that “it takes 60 votes in the Senate” to pass anything, and that’s because the Senate’s rules allow for limitless debate that can only be cut off when 60 senators vote for “cloture.” In the House of Representatives, debate can be ended by a simple majority vote.
Originally, both the House and Senate had the same rule, allowing debate to be ended by a majority vote, but the Senate dropped its rule after 1805 at the urging of Vice President Aaron Burr, who had recently shot Alexander Hamilton, and thus may have been unusually persuasive.
Burr’s intention was only to simplify the Senate’s rules, and it was 30 years before the first filibuster took place. But as the Senate grew and became more polarized, the use of the filibuster became more frequent — and more frustrating — to lawmakers and presidents.
It was President Woodrow Wilson, in 1917, who successfully pushed through the first reform of the filibuster, after a small group of Republican senators blocked the administration’s proposal to arm merchant ships during World War I.
Wilson called it an issue of national security, and he criticized the obstructionist senators to the point that the public was burning them in effigy. After extended negotiations, the Senate adopted a cloture rule that allowed a supermajority of senators to cut off debate.
In 2013, the Senate’s Majority Leader, Democrat Harry Reid, did away with the 60-vote requirement for the confirmation of most judicial and other nominees, and, earlier this year, Senate Majority Leader Mitch McConnell extended that rule to Supreme Court justices as well.
Now the filibuster remains an option only for legislation, and President Donald Trump has called for the Senate to get rid of that, too.
He may have a point. The need to find 60 votes in the Senate haunted the drafting of the House health care…