3/31: Who Says the Majority Rules? That Filibuster Thing Explained

WASHINGTON — It’s a safe bet that the most familiar image of a Senate “filibuster” comes from the movie “Mr. Smith Goes to Washington.”

But, that’s Hollywood.  And, it’s Old Hollywood.  Jimmy Stewart wouldn’t recognize what people now call a filibuster.  And, it surely is not what will happen in the next several days when Democrats threaten a filibuster to block the Senate from confirming Judge Neil Gorsuch to be an associate justice of the Supreme Court.

Here’s a look at this odd tool of governing that looks awful when your side has power and fantastic when you’re out of power.

1. What is it?

A senator or group of senators speak as long as they can, thus forcing attention on an issue – as in the Mr. Smith movie – while also delaying a vote.  The practice is as old as the Roman Senate.  The term comes from the Dutch word for pirate.

2. Can’t the Senate shut them up?

Sure.  But, it’s controversial inside the Senate.

As early as 1841, Sen. Henry Clay threatened to use a majority vote to stop debate when Democrats were trying to block a bill he wanted.  It was the first attempt at what we now call a “nuclear option” blowing up Senate customs.  Back then, I’d guess it was a “gunpowder option.”

In 1917, as war loomed, the Senate adopted the “cloture” rule, saying a vote of two thirds of the Senate could stop a filibuster and allow the Senate to vote on a bill or nomination.

3. What was the impact?

The need for 67 votes in a 100-vote Senate set the bar pretty high to stop a filibuster.  Whether the proposals were more mainstream, the Senate was more congenial, or senators simply couldn’t muster the votes to end a filibuster, there were few votes to invoke “cloture” to end filibusters.

4. Why are there so many more now?

Led by Walter Mondale, D-Minn., the Senate changed its rules in 1975.  That made it easier to cut off debate by requiring just 60 votes for cloture.  In an interview several years ago, Mondale told me that was one of his proudest achievements in the Senate, a footnote to the filibusters that had made it so hard to enact civil rights legislation.

But, the Senate in 1970 also made it easier to simply threaten a filibuster rather than actually having to stand up and talk for hours and hours.  So, the parties did that, a LOT more often.

4. What will happen on Gorsuch?

Democrats led by Senate Minority Leader Chuck Schumer, D-NY, say they will filibuster, or block, a vote.  They say it should require at least 60 votes to put someone on the high court for life.

So, the Republicans will need their own 52 votes plus 8 Democratic votes to invoke cloture, end the threatened filibuster, and allow a vote on confirmation.

Republicans, who coincidentally would not allow a vote last year on Barack Obama’s nomination for the court, say it’s wrong for the Democrats to do the same thing, using a threatened filibuster against Donald Trump’s nominee.

“Senate Democrats have begun justifying their opposition to Judge Gorsuch by claiming a 60-vote standard for his confirmation,” said White House Press Secretary Sean Spicer.  “That standard doesn’t exist and these claims continue to be false.”

Spicer went on to note that Sen. Tom Udall, a Democrat from New Mexico, argued in 2013 when Obama was president that a vote on a Supreme Court nomination should not be blocked by a filibuster.

“A minority in the Senate should not be able to block qualified nominees,” Udall said, then, as correctly recounted by Spicer.  “We could not agree more with Senator Udall.”

That was then.

Now, Udall says he will support a filibuster and vote against the cloture needed to end it.  “Every recent Supreme Court nominee has received at least 60 votes either for cloture (a procedural vote that allows a final vote) or confirmation.  Judge Gorsuch should be subject to the same test, and therefore, I will vote no on cloture and confirmation,” Udall told the Albuquerque Journal.

Republicans may fall short of the 60.

5. So, it’s over.

No. Republicans signal they will change the rules if necessary to remove the threat of a filibuster for Supreme Court nominees.  “Judge Gorsuch is going to be confirmed,” Sen. Orrin Hatch, R-Utah, told reporters.

“By any means necessary.”

The views expressed in this article are solely those of the contributor and do not reflect the views of The Marist Poll.

Steve Thomma has written about Washington from Reagan to Trump, always aiming to explain politics and policy to an audience outside the Washington beltway. He won the Prize for Distinguished Reporting on the Presidency in 2010 from the Gerald R. Ford Foundation, the Aldo Beckman Award from the White House Correspondents’ Association for distinguished his reporting on the 2000 presidential campaign, and the National Press Club’s award for best regional reporting in Washington in 1994. He’s a former president of the White House Correspondents’ Association and a trustee of Dominican University in River Forest, Il. On Twitter @stevethomma