In 1957, Strom Thurmond held the Senate floor for 24 hours and 18 minutes to stall the passage of the 1957 Civil Rights Act. He prepared himself for his crusade while in the sauna: intentionally dehydrating himself so that when he sipped water to moisten his throat, he wouldn’t have to use the bathroom. His attempt was nonetheless unfruitful – after he eventually succumbed to fatigue after speaking for more than an entire day, the bill passed anyway. On Tuesday, the Senate Democrats were unable to take up a bill that would mitigate, to a certain extent, the free-wheeling corporate response to Citizens United v. FEC. There were 57 Democrats in favor of taking up the bill, but they were unable to invoke cloture and force their way past the Republican opposition.
So was it Jeff Sessions who took his turn in the Senate sauna to lead the Republicans against the Democrats on this issue? Was it James Inhofe who lectured his colleagues on the delicious flakiness of his grandmother’s biscuits? Or was it Jim Bunning regaling all who would listen about the finer points of the four seam fastball and what the locker room was like after his perfect game?
By simply stating that the Republicans intended to filibuster the bill, Mitch McConnell was able to stop the Democrats in their tracks, who proceeded to adopt a different issue. No cots brought in to the Senate chamber. No marathon sessions. Nothing. Why?
The development of the dual track system. Prior to the 1970s, the Senate’s bills were all on a list, where it was impossible to consider Bill 2 if Bill 1 hadn’t been resolved. This is when a filibuster was a costly, but nonetheless effective manner to halt legislation: until the filibuster was overcome via cloture, or the majority caved to the filibusterers, nothing else got done.
In the 1970s, when majority whip Robert Byrd eventually got tired of civil rights filibusters stopping all Senate business dead in its tracks, he developed the two-track system that essentially created two lists from which the Senate could consider issues from either list. If Bill One is being filibustered, skip it altogether, go straight to Bill Two and maybe you can come back to Bill One again once you have a better chance at passing it.
The result of this is that filibustering became relatively costless: you didn't actually have to filibuster to stop a bill - just threaten to, and the majority leader will skip to the next item on the list. As the cost decreased, filibusters became more and more common. In the pre-dual track Senate of the 91st Congress (1969-1971), there were seven cloture motions filed. Seven. In the current 111th Congress, there were 111 cloture motions filed, and the session isn’t even over.
If you like your Senate to be the proverbial saucer that cools your coffee, you are in good shape. If not? Well, as Barry Friedman and Andrew Martin point out, the dual track system is just a norm: there’s no formal rule anywhere. Should the Democrats be interested in eventually forcing the filibustering Republicans to take it to the mattresses, they can do so on the fly.
Of course, changing institutional arrangements (either formal or informal) can be costly, particularly given the Democrats’ uncertainty about when they will lose their majority status and be forced to actually act on their threat to filibuster. That said, maybe they should consider it, as long as Joe Lieberman is still around and caucusing with them. He’s like the ultimate filibustering weapon. Listen to this, which took place under routine (timed) debate. Can you blame Al Franken for not wanting to listen anymore?