When Angus King ran for the U.S. Senate, he pointed to the body’s dysfunction, and often cited the huge increase in the number of filibusters.
After being elected and before taking his seat, he talked about the filibuster with reporter Colin Woodard.
“Lyndon Johnson in six years (as Senate majority leader) faced one filibuster. Harry Reid in the last five or six has dealt with 386,” King says. “It’s become the norm that any piece of substantive legislation has to get 60 votes, and that’s not the way the Constitution was designed.” [source]
King was right. In fact, the filibuster has never been part of the Constitution.
The filibuster is a rule of the Senate and its form has changed over time.
As political scientist Sarah Binder explained in congressional testimony, its creation was an accident and no filibuster occurred until 1837.
The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books.
What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.
Why? Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.
Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837. [source]
Since King took office several steps were taken to reform the filibuster, but they have failed.
What were those steps?
Well, as King explained in February 2013:
We got limitations on the filibuster on motion to proceed, collapsing three motions to take a bill to conference. A lot of the filibusters have been on the motion to proceed, so now at least we can get to the bill on the floor. [source]
However, that proved pretty ineffective. So in July, Senate Majority Leader Reid came close to holding a vote that would drop the filibuster for executive appointments.
After a closed door meeting of the Senators, the Senate voted to confirm Richard Cordray as the head of the Consumer Protection Bureau. Cordray received 66 votes but filibusters had blocked the vote for two years.
As Michael Cuzzi reported:
According to King, while Monday’s meeting didn’t result in concrete changes to Senate rules, the event and subsequent agreement qualify as filibuster reform because they created “attitude reform.”
King, who still believes real filibuster reforms are needed, acknowledges that the rules themselves aren’t necessarily as problematic as the abuse of those rules. And it’s that abuse that repeatedly drives the Senate to the nuclear brink.
King believes that Monday’s meeting will result in greater circumspection among Republicans over the filibuster, with restraint stemming from both fidelity to the institution and comity with fellow senators. Whether that attitude adjustment persists long term is, King admits, anyone’s guess. [source]
That “attitude adjustment” didn’t last. Senate Republicans have been blocking votes on judgeships.
Senator Reid has been speaking with his fellow Democrats about changing the filibuster for executive branch offices and most judgeships. Reports indicate that more are signing on to the idea.
A vote may come very soon.
What will Senator King do?
Update: King voted to limit filibusters.