By: Deborah Goldman

We’ve grown accustomed to hearing threats of the government shutting itself down as a result of partisan disagreements. Yet another situation is brewing on the Hill, and this one dates back to Aaron Burr –– and I don’t mean pistols at dawn. Filibuster reform is back on the table, and with congressional polarization this high, it promises to be a messy fight.

Senate Majority Leader Harry Reid (D-NV) is making a push for filibuster reform in hopes that it will ease senatorial gridlock.  Specifically, he is floating proposals which would, most notably, ban the use of the filibuster on motions to proceed or at the beginning of a debate, or require filibusters to take the traditional form of a Senator standing on the floor and talking until cloture is invoked.  However, Senators would still be able to use the filibuster under most other circumstances.

Democrats, led by Senator Reid, are bringing this push in response to the massive growth of the filibuster’s invocation.  As Majority Whip Dick Durbin (D-IL) pointed out, the filibuster is rendering the senate essentially dysfunctional.  In the last six years, under Reid’s leadership, there have been 386 Republican-led filibusters, on even simple procedural matters and nominations, in attempts to stall the Democratic agenda. For a more stark comparison, there were only 16 filibusters between 1840 and 1900, whereas there were 130 during the 2009-2010 session.  The growth was thought to be such a great problem that the number of votes required to invoke cloture was reduced from two-thirds to three-fifths of the Senate. The White House has publicly announced support for this potential rule changes regarding the filibuster, saying that the people want progress, and are dissatisfied with the partisan delay games that have marked Congress throughout recent history.

There is some controversy about the potential mechanisms Reid may use to get this rule change passed. He could pass the rule change under traditional rules, requiring a two-thirds, or 67 person, vote. However, due to the sharp partisan divide which has marked the past few years, it is unlikely Reid will be able to garner enough votes. There is another alternative, called the “nuclear option,” which would only require 51 votes for the rule change, at the start of the new term.  However, this suggestion has raised considerable opposition from Senate Republicans.  Senator Tom Coburn (R-OK) argues that invocation of the nuclear option would strip away minority rights. Coburn also accuses Reid of being a weak leader, and that his failings are the only reason he would need to invoke this option.

Senate Minority Leader Mitch McConnell (R-KY) claims that any move to change rules governing the filibuster would “poison” relations between parties.  He accuses the Democrats of using this as a “naked power grab,” and insinuated that there will be severe negative repercussions when the Democrats no longer hold the majority in the Senate.

The threat of changes to filibuster rules reignite old questions of the filibuster’s constitutionality.  The Constitution mentions only six specific circumstances under which a supermajority is required to pass a motion.  While under current rules, the filibuster does not necessarily mean that a supermajority is required to pass any motion, it has taken on that nature in the past few years.  The Founders considered the potential of requiring a supermajority in the Senate, and were very much against the proposal, as both Hamilton and Madison discussed in Federalist 22 and 58.  In considering this historical perspective, as well as the expressio unius est exclusio alterius canon of statutory construction, a practice which effectively requires a supermajority in all circumstances appears questionable. Additionally, the argument has been made that the filibuster is a historical anomaly. Its origins trace back to 1806, when Aaron Burr sought to clean up Senate rules. The “previous question” motion, used to end debates, was eliminated, as Burr felt that gentlemen knew when to stop talking. The possibly unforeseen and unintended result of this elimination was what we now know as the filibuster.

The ultimate success of this attempted rule change is uncertain. While it appears as though there is more support for requiring all filibusters to take the standard form of a talkathon than any other changes proposed, even that will be a fight in our toxic political climate. What is certain is that there will be a standoff between both parties in the Senate as early as January, especially if the nuclear option is invoked, which could bring all Congressional action to a halt at a time where the Senate docket is replete with appointment confirmations.