Brennan Center Study: Rampant Filibuster Abuse Paralyzes Senate, Proposed Reforms

Low congressional productivity in the U.S. Senate stems from a continued abuse of the filibuster, not merely divided government, a new Brennan Center report shows.

The new report, Curbing Filibuster Abuse, details the sharp rise in legislative obstruction in the Senate and offers a blueprint to curb filibuster abuse in the next Congress. It comes amid serious discussions by Senate Majority Leader Harry Reid and others to make filibuster reform a top priority.

"It is no secret that this Congress has had low productivity, but it is natural to blame divided government," said Michael Waldman, president of the Brennan Center for Justice. "This data shows that Senate paralysis, due to the filibuster, is a major factor crippling Congress. Rules reform could make a big difference."

Key findings include:

• The current Senate passed a record-low 2.8 percent of bills it introduced, a 66 percent decrease from 2005-2006, and a 90 percent decrease from the high in 1955-1956.
• Since 2006, the Senate filed 385 cloture motions -- the only way to forcibly end a filibuster -- greater than the total number filed between 1917 and 1988. This creates a de facto 60-vote requirement for all Senate business. It also underestimates the frequency of filibusters because it does not account for bills that are abandoned due to the mere threat of a filibuster.
• In the last three Congresses, the percentage of Senate floor activity devoted to cloture votes was 50 percent greater than any other time since at least World War II, leaving less time for consideration of substantive measures.
• On average, it has taken 188 days to confirm a judicial nominee during the current Congress, creating 32 "judicial emergencies," as designated by the Office of U.S. Courts.

"The filibuster has been transformed into a regular feature of Senate procedure, crippling not just the upper house, but the entire legislative branch of government," said Diana Kasdan, counsel in the Brennan Center's Democracy Program and co-author of the report.

On the first day of the legislative session, the Standing Rules of the Senate can be amended with a simple majority vote, instead of the 67-vote threshold normally required.

"Now is the time for the Senate to act," added Jonathan Backer, research associate in the Brennan Center's Democracy Program and co-author of the report. "A new crop of Senate reformers, ushered in through the 2012 election, places filibuster reform within reach."

The Brennan Center's report offers multiple reform proposals, including:

• Permitting only one filibuster opportunity per measure or nomination (there are currently six such opportunities).
• Requiring at least 40 votes to sustain a filibuster (a supermajority of 60 votes is currently required to break a filibuster).
• Requiring filibustering senators to stay on the Senate floor and debate, as was true in the past.
• Giving the minority party more opportunities to offer amendments to bills (the majority often "fills the amendment tree," preventing the minority from influencing legislation and leading to more gridlock).

"Both the minority and majority parties have employed obstructionist tactics that will not be controlled until the rules that permit abuse are remedied," said Mimi Marziani, counsel in the Brennan Center's Democracy Program and co-author of the report. "The basic reforms we outline are a start, not a finish, for the task of retooling the Senate for the 21st century."