Ragusa: An historical take on the filibuster

December 4, 2013 

Ragusa

— What changed, exactly, now that the U.S. Senate has “gone nuclear”? Is this really a big deal? And is this unconstitutional?

As a technical matter, last month’s reform wasn’t a change in the Senate’s rules. In “going nuclear,” Harry Reid and Senate Democrats merely “reinterpreted” the rule requiring a three-fifths vote to end debate on presidential nominees. That’s the odd thing about the filibuster: It’s only powerful because senators willingly accept it.

In the short term, this was the biggest change in the Senate since 1975, when the cloture requirement was lowered from two-thirds.

Perhaps most importantly, President Obama now will be able to appoint three new judges to the D.C. Circuit Court who will help decide the fate of a host of federal regulations ranging from the environment to financial regulations.

But over the long term, the Senate reform could be the change that ultimately transforms the Senate into a body like the House. If you want to extend the nuclear metaphor, think of legislative procedures as an arms race. As control of the Senate changes hands over the next decade or so, the majority likely will adopt further parliamentary changes.

Isn’t this unconstitutional? That’s easy: No. People often think the filibuster was envisioned by the Framers. Quite the contrary. Article 1 gives the House and the Senate the power to determine their own rules and proceedings. (That’s right, whatever rule they can dream up). The word “filibuster” is not in the Constitution.

Furthermore, there’s nothing unique to the Senate about the filibuster. During the 1800s, filibustering was more prevalent in the House. From 1890 to 1894, it was the Republican Party that was primarily responsible for transforming the House into a majoritarian body. It would be fair to say that things have come full circle.

Finally: Was the procedural change a good thing? Short answer: If you’re a Democrat, yes; if you’re a Republican, no. Long answer: It depends on how much you favor representative democracy versus limited government.

But whatever your views, it certainly was a big deal.

Jordan Ragusa

Assistant professor of political science

College of Charleston

Charleston

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