History of the Filibuster.  The filibuster has a long and proud history in the United States Senate and, historically, is part of what once made the Senate the “greatest deliberative body in the world.”  Most of us first got to know the filibuster – the procedure where a Senator can prevent a vote by extending a debate indefinitely and refusing to yield the floor –  in the Jimmy Stewart classic, “Mr. Smith Goes to Washington.”

Historically, there was no rule either authorizing or preventing the filibuster; the tactic was simply permitted under the Senate procedures for debate.  This initially changed in 1917 with the adoption of Rule 22, which allowed the Senate to end debate on a measure with a 2/3rds vote of the Senators present and voting.  When a Senator filibustered, they didn’t have to stay on topic with the bill.  So, for example, the infamous Louisiana Senator Huey Long once recited Shakespeare and read out recipes for “pot lickers” during a fifteen hour filibuster.  Senator Strom Thurmond set the record for the longest Filibuster by an individual Senator when debating against the Civil Rights Act of 1957 for 24 hours and 18 minutes.

The many filibusters engineered by southern Senators against the Civil Rights Act and corresponding legislation – the act itself was filibustered by a number of different Senators using various dilatory tactics for over fifty-seven hours – prompted the Senate to reconsider its rules.  Not until 1975 did it lower the threshold from two-thirds to three-fifths of Senators present and voting to pass a cloture vote.  In addition, between 1973 and 1996 Congress also passed laws that limit filibusters on certain kinds of bills, including budget reconciliation bills, fast track consideration of trade acts and votes related to the war powers act, inter alia.  Finally, sometime in the early 1970s, the Senate began to allow Senators to put “holds” on legislation by “threatening” a filibuster simply by making a request of the majority leader in writing.

As a consequence of these changes in the Senate rules, the number of filibusters and the number of attempted cloture votes has increased dramatically.  The chart below demonstrates the dramatic rise, beginning around 1970, and spiking ever since.  The increase has been even more dramatic since around 2003.

What is the Nuclear Option?  The “nuclear option” is a filibuster-reform plan for the majority party in the United States Senate to change Senate precedents without a supermajority.  Senator Trent Lott (R Mississippi) first characterized the possibility of a “nuclear” option if the majority party unilaterally imposed a change to the filibuster rule, which might thereby provoke very harsh “retaliation” by the minority party.  The option gained prominence in 2005 when Majority Leader Bill Frist (R Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush.  The nuclear option was raised again following the congressional elections of 2012, this time by Senate Democrats in the majority — but short of a supermajority — frustrated by the Republican Senators repeated use of the “threatened” filibuster to shut down President Obama’s agenda.

So how would the nuclear option work?  In brief, it would require that a Senator raise a point of order calling for an immediate vote on a measure that’s being filibustered; the presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, would have to make a parliamentary ruling upholding the point of order. A supporter of the filibuster could then appeal the ruling by asking, “Is the decision of the Chair to stand as the judgment of the Senate?” An opponent of the filibuster would then move to table the appeal before it could be debated. As the motion to table is itself not subject to a debate – and therefore cannot itself be filibustered – a vote could be held immediately. A simple majority could uphold the ruling of the chair.  (As a practical matter, rulings of the chair are almost always party-line votes.)

In addition, the rules on the filibuster could be permanently changed if the presiding officer’s ruling is that the filibuster is unconstitutional, and this ruling were to be upheld.  (There is an argument to be made that the filibuster itself is unconstitutional, but I won’t bore you with the details here.)  Such a vote would effectively cause a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

It’s also possible to change the rules of the filibuster using the “nuclear option” on the first day of the new session, when the Senate’s rules for the coming session are decided and debated.  Under current Senate rules, it requires a two-thirds vote of those Senators present and voting  (as opposed to the normal three-fifths of those sworn) needing to vote to break a filibuster regarding debate of the Senate Rules.  However, using the procedures outlined above, the Senate could bypass a filibuster of the debate on Senate rules.  Nevertheless, using the “nuclear” option is something that Senators are historically reluctant to do as it then sets the precedent that the same option can be used anytime to limit debate in the Senate. This would set an entirely new precedent in the Senate.

The other possibility for reforming the filibuster is to use the precedent of the 1892 Supreme Court ruling of United States v. Balin, 144 U.S. 1 (1892), in order to reform Senate rule by simple majority.  The Balin case – which concerned whether there was a quorum present to pass a bill related to an increase in customs duties on woolens – established that when a quorum is present, votes of a majority of that quorum are sufficient to pass a bill in Congress.  There is an implication in the case (but not a direct precedent) that the same applies to establishing the rules for the House and Senate so that the Senate’s own procedures for how to change its own rules could be regarded as constitutionally infirm.

Confused yet?  I have a law degree, and I find this hard to follow at times.

Regardless of these strategic possibilities, the best option is to provide enough political pressure in the Senate that the Senators themselves would agree to reasonable reforms of the Filibuster.

How Should the Filibuster Reform Be Reformed?  One possibility, which I don’t support, is to simply lower the margin for cloture from the current three-fifths of the Senate to a simple majority.  This would essentially institutionalize the “nuclear” option and make the Senate just another version of the House.

A better way to reform the filibuster is to make it difficult and uncomfortable again, so that it is used by Senators only when they really are passionate about something.  This can be done in two ways:

First and most significantly, eliminate the option of Senators to place a“hold” on a piece of legislation with the threat of a filibuster.  (This hold was never, by the way, formally adopted in the Senate rules.)

Secondly, the Senate could limit the option of the minority to require quorum calls or procedural votes in the middle of a filibuster.

As Gregory Kroger argues in his book Filibustering, the reason that the Senate went away from the arduous practice of having real “Mr. Smith” style filibusters is that the calendar of Senators became too busy and their workloads too high to wait around the Senate Chambers for the hours that a filibuster consumed.  This compromise would allow the minority to filibuster if they so chose without keeping the entire Senate beholden to them.  The majority could simply position a sentinel and wait out the time until the speakers are finished.

Senators Jeff Merkley (D, Oregon) and Tom Udall (D, New Mexico) have proposed a very sensible filibuster reform that prohibits Senators from “calling in” filibusters – also known as “lazy filibusters” – and instead to require real or “talking” filibusters.  To sign a petition in favor of this proposal you can add your name to the “Reform the Filibuster” website.  To communicate with individual Senators you can go to the Senate.gov website and look them up individually.  I would recommend communicating at least with Harry Reid, the Majority Leader, Mitch McConnell, the Minority leader, and the two senators from your own state.  And best to do it now, because the vote can happen any day now, and probably should already have happened but for parliamentary procedures to delay the new Congress from getting down to business.