Normalizing the Filibuster

The Senate’s peculiar institution gets taken for granted

Yesterday, the Minnesota Supreme Court finally made official what had for months seemed a foregone conclusion: Al Franken will be the state’s next senator. The reason this matters outside of Minnesota, of course, is that Franken’s win, following on the heels of Arlen Specter’s defection from the Republican Party, gives Democrats sixty votes in the upper house, and thus the potential to overcome GOP filibusters on legislation regarding climate change, health care, and other controversial topics.

The political press noted the development, while generally pairing it with some appropriate skepticism that the Democratic caucus will remain united. Franken’s win, said The New York Times, gives Democrats “at least the symbolic ability to overcome filibusters,” while The Washington Post allowed that Democrats could now “theoretically” overcome lockstep GOP opposition. Politico was less restrained, declaring on its home page that Democrats now have a “dominant supermajority.”

What went unsaid in this coverage, though, is just how peculiar and historically exceptional the sixty-vote requirement is. As the Senate’s own Web site shows, cloture motions—the means by which a filibuster may be defeated—were virtually unheard of before the 1960s, and remained relatively rare for another decade after that. The motions reached a new level in the 1990s and then spiked again starting in 2007, after Democrats took control of the Senate in midterm elections. The 112 cloture votes in the 2007-2008 Senate were nearly double the previous record high. The reflexive resort to the filibuster is a modern development.

Why does this matter? The widespread use of the filibuster adds another element of counter-majoritarianism to a system that already has plenty of them (including the structure of the Senate itself). We are now in the uncommon situation in which a widely popular, recently elected president enjoys substantial majorities in both houses of Congress. And yet passage of his key domestic priorities is far from assured. This legislative gridlock isn’t a function of the people in Washington—it’s a function of our institutions, the filibuster chief among them. The political reporters who cover Washington know all this, no doubt. But somehow, widespread use of the filibuster has become normalized in short order.

There’s no simple solution to this situation: Stories about the minutiae of the legislative process aren’t likely to grab many eyeballs, after all. And once a reporter has written her one-time story about the rise of the filibuster, is it still “news”? But it’s a challenge that reporters would do well to grapple with, because in the long run, the rules of the legislative game will determine policy at least as much as the identity of Minnesota’s senator.

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Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.