Let's Put an End to Political Blustering in the Senate, and Kill the Filibuster

In America's early days, a filibuster was a pirate -- "filibustero" in the original Spanish -- a soldier of fortune who plundered foreign lands without his government's consent.

Today's filibusteros wear $500 suits and carry BlackBerries, not cutlasses, on their belts. We call them senators. The piracy continues however, now legalized and directed at our own government.

Last week, 42 Senate filibusteros demanded a $700 billion ransom, in the form of a tax cut for the richest Americans, and promised that nothing -- however important it might be -- will emerge from the Senate until they get it. Their piracy almost certainly will succeed, to be followed by more of the same. And the pirates will smugly insist that the filibuster is part of a great democratic tradition.

Aaargh!

The fact is that the modern filibuster, through which one senator or a handful can kill legislation by talking, talking, talking so long that the majority gives up and moves on to something else, has never been part of the Constitution or any law. It's not even in the original rules of the Senate.

You could almost say it's an accident.

America's founders fancied the Senate as a place for careful, thorough deliberation, in contrast to the more mercurial, close-to-the-people House of Representatives. George Washington is said to have described the Senate as the saucer where the passions of the day were poured out like scalded coffee to cool.

The first senators considered themselves gentlemen and so were loath to end discussion of any of the Senate's business until everyone had a chance to be heard. Still, the original Senate rules included a mechanism to end debate and force action by a simple majority vote.

It was rarely used. Leaving the vice presidency in 1805, Aaron Burr noted that he'd presided over only one vote to cut off debate during his four years in the chair. In 1806, senators decided that the rule permitting a motion to end debate was unneeded and eliminated it. The move enabled a single senator to block action by the entire body.

Still, the first real filibuster didn't come for another 35 years, in 1841, and there were only 32 more in 76 years after that.

In 1917, after a filibuster blocked President Woodrow Wilson's bill to arm American merchant ships threatened by the German navy, the Senate finally agreed to permit limits on debate, changing the rules to allow a cutoff, or cloture, on the vote of a two-thirds majority. The threshold was lowered to a three-fifths majority, now 60 senators, in 1975.

Not until the 1980s, 90s and the current decade, did filibusters become a popular parliamentary tactic. Democrats and Republicans alike now characterize them as a critical check on the excesses of the majority, a tool that forces both sides to compromise so that legislation can move forward.

It sounds good, but in today's hyper-partisan Senate it just isn't true. Today's filibusters actually stifle debate rather than extend it, block compromise rather than encourage it. Here's how.

Everything the Senate does, even the decision to consider a particular bill on a particular day, requires a vote. That means the decision can be filibustered.

In September, Republicans opposed to President Obama's plan to let gays serve openly in the military filibustered a motion to begin debate on legislation ending the current "Don't Ask, Don't Tell" policy. When cloture failed, the Senate was effectively blocked from taking up "Don't Ask" or amendments to the policy that might have produced a compromise. The only debate was over debating itself.

This happens with depressing regularity. Just this year, 41 Republican senators -- the minimum needed to defeat a cloture motion and keep a filibuster alive -- have blocked or delayed action in the Senate 125 times.