Above all, the undone statesman had intended to make his farewells.

A fastidious parliamentarian, an impeccable dresser—and recently
indicted for the murder of Alexander Hamilton during a duel over an insult the year before—Aaron Burr had lost his bid for reelection as vice president of the United States.

He was leaving his Senate.

It was March 2, 1805.

After a closed-door executive session,
Burr surprised his colleagues by delivering his speech, now remembered as one of the most famous of his time.

Sometimes abrasive as a parliamentarian, Burr softened his audience by acknowledging that he must have wounded some colleagues’ feelings over time. He did not apologize, but he assured them that he had always acted with the aim of preserving the dignity of the Senate. For his part, he said, he was leaving with no grudges. He went on to extol the Senate, and he exhorted his colleagues to continue to revere and uphold its rules in their role as guardians of the Constitution.

Then the vice president exited the chamber and shut the door behind him—with force, as some recalled—leaving his stunned audience in silence and tears. Some reported his audience’s stupor lasted five minutes; some said half an hour.

Now, two centuries later, it is a different part of Burr’s speech that holds sway over the Senate: its seemingly insignificant introduction.

Before Burr expounded on wounded feelings and the high calling of the Senate, he “touched lightly”
on a few rules, wrote John Quincy Adams, a senator at the time, in his diary. In particular, Burr advised his colleagues to drop the “previous question” motion because its intent was adequately covered by another motion for postponing debate indefinitely. The following year, when the Senate revised its rules for the first time, they took his advice.

That is how the Senate of 1806 opened the door to the filibuster, which has alternately been praised as a tool that ensures the rights of the minority, and ridiculed as an arcane rule that ties the hands of the majority—sometimes by the same people.

While some argue that the Senate created the filibuster for the purpose of ensuring adequate debate, Sarah Binder, a senior fellow at The Brookings Institution and coauthor of the 1997 book Politics or Principle: Filibustering in the United States Senate, says history indicates otherwise. “I think it was a mistake. I honestly think they had no idea what they were doing,” she says of the 1806 Senate.

‘Where You Stand Depends on Where You Sit’
Binder favors reforming the filibuster, which has been revised several times since 1806. In 1917, realizing it had no rules for ending debate, the Senate established Rule XXII, which allowed a two-thirds majority of the senators present to set a time to end debate and call for a vote. In 1975 the Senate reduced the votes needed to three-fifths of the entire body. So while the House of Representatives, which never dropped its Previous Question rule, can invoke cloture with a simple majority, the Senate needs a 60-vote majority.

That has proven extremely difficult to muster, which has made it easy for the minority party to seriously impede the majority’s ability to enact legislation, from sweeping reforms such as the enactment of civil rights legislation to extremely minor matters such as the naming of the Senate printer.

This spring’s gridlock over President Barack Obama’s programs inspired Democrats to savage the filibuster as arcane and useless—“a straitjacket” in the words of Senator Charles Schumer, the New York Democrat who chairs the Senate Committee on Rules and Administration, and who has begun holding meetings about filibuster reform. Of course, back when the Republicans were in the majority, they had their own choice terms for the filibuster.

Binder acknowledges that many critics’ thoughts about the filibuster shift with the political winds. “Most often, when it comes to both senators’ and observers’ views about rules, where you stand depends on where you sit. There are very few procedural purists out there who have a nuanced view of rules that last regardless of who’s in charge of the chamber,” she says.

She adds that her own view has not changed. As a student of Senate procedure, “I’ve been yammering for a long time that supermajoritarian rules are archaic and require excessive majorities. That’s an affront to majority rule, and there’s really nothing wrong with majority rule.”

Proposed Reforms
Washington Lawyer asked Binder and several other nationally recognized filibuster experts from both sides of the aisle for their opinions on how they would reform the filibuster, and their critiques of other proposals. Below is a brief overview of their stance on the issue; their proposals will be covered in-depth in succeeding paragraphs.

Binder supports the filibuster reform proposed by Democratic Senators Tom Harkin of Iowa and Jeanne Shaheen of New Hampshire. Under their proposed rule change, the number of votes needed for cloture would be reduced over four successive votes—from 60, to 57, to 54, and, finally, to a simple majority of 51.

Freshman Senator Tom Udall, a New Mexico Democrat, is pushing for the so-called “nuclear option,” but which he calls the “constitutional option.” Citing Supreme Court precedent that no Congress can make rules that will bind a future Congress, Udall argues that the Constitution and various Supreme Court rulings allow each new Senate to make or amend its own rules with a simple majority.

Gregory Koger, author of the new book Filibustering: A Political History of Obstruction in the House and Senate and an assistant political science professor at the University of Miami, is a staunch supporter of the filibuster as a way to protect minority rights. But he favors a few proposed changes, including one that would put the onus on the minority to produce 41 votes to continue a filibuster, instead of requiring the majority to come up with 60 votes for cloture.

Makan Delrahim, who served as chief counsel and staff director for the Senate Judiciary Committee from 2001 to 2003, believes in the usefulness of the filibuster in general, but would like to see it reformed so it cannot be used to block judicial nominees. Back in 2001, he proposed establishing a set number of hours for debate on a nominee, and then automatically moving to an up or down vote when those hours expire. He stands by that proposal today.

‘The Saucer That Cools the Coffee’
Most of these proposed reforms have been debated for decades. But no one has managed to change Rule XXII since its last overhaul, spearheaded in 1975 by Senator Walter Mondale (D–Minn.) amid gridlock over debate on national health care insurance and whether to extend the Voting Rights Act of 1965.

One of the most traditional arguments against reform—Adams’ notes about Burr aside—is that the country’s Founders intended for the Senate to be a temperate, deliberative body, one that would offset the more passionate and relatively reckless group of plebeians comprising the House of Representatives. Whatever its beginnings, the filibuster, the argument goes, is now part of the soul of the Senate, and to fiddle with it would be tantamount to undermining the will of the Founders.

“While [the filibuster] is not strictly in the Constitution, it’s part of the Senate rules and it does serve constitutional values,” says Gene Healy, a vice president at the Cato Institute who specializes in executive powers.

Healy points us to Federalist Papers No. 73, written by Hamilton (the very man Burr killed in the infamous duel): “The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.”

“It’s just like that old apocryphal story about [President George] Washington explaining the Senate’s role as the saucer that cools the coffee,” Healy says. “I think that throughout the Federalist Papers, you see a lot less about the danger that we won’t pass necessary legislation in a hurry than about the danger that it will be too easy to change the fundamental law of the country.

“The filibuster has evolved as a tool that addresses that larger constitutional concern. And since a lot of the more formal constitutional checks have eroded over the years, the filibuster in some ways steps in and tries to restore that balance.”

Robert Dove, Senate Parliamentarian Emeritus, is one of those rare parliamentary purists. Dove served in the Parliamentarian’s Office, initially as an assistant, from 1966 to 2001; he now serves as a public policy specialist at Patton Boggs LLP and teaches at The George Washington University.

Dove works from the axiom that there is nothing ever wrong with the Senate’s rules. “When I came into the Parliamentarian’s Office, the Parliamentarian told me that the Senate rules were perfect and if they were all changed tomorrow, they would still be perfect. That is my view,” Dove says.

However, he particularly likes the current form of Rule XXII, with its requirement for a 60-vote majority to shut down a filibuster. “I am not an opponent of the Senate’s ability to slow down things. I think that’s why the Senate was created…. I think [the filibuster] plays its role in an appropriate way.”

Koger agrees. “In the long view, there are positive aspects” to the filibuster. “For instance, it’s a good thing that we make progress incrementally rather than lurching forward and back,” he says.

“Let’s say you pass legislation creating a free market for health care. You get what you can afford. Then, four years later, you pass single-payer health care. You get what the government says you get. This is a caricature” of what could happen, Koger says, but “that’s a radical transformation. If we swung from extreme to extreme, in a variety of areas . . . by itself, that instability would be difficult to live with. . . . Filibusters tamp down big swings in policy.”

Binder questions the idea that the filibuster makes the Senate a more deliberative body or less rash. “We see repeated cloture votes, but it doesn’t seem we have much evidence that there’s careful deliberation going on as majorities try to get 60 votes. It’s more horse-trading,” she says.

She also disagrees that requiring a simple majority for cloture would turn the Senate into a body of reckless lawmakers.

“Senate constituencies don’t look anything like House constituencies. To say we’d end up with rash legislating majority is not right,” Binder says. For one thing, “if you can’t count on the Senate saving you” from legislation the House passes, the House “might not pass the same policies,” she adds.

Minority Rights and Hostage-Taking
Most supporters of the filibuster say that it preserves even a slim minority’s ability to negotiate with the majority. “Any one senator can slow down any piece of legislation. That does mean essentially a veto over legislation or a nomination that’s not important to the rest of the Senate. With 41 senators, you can block anything,” Koger says. He likes that aspect of the filibuster.

President Woodrow Wilson, of course, did not. On the eve of our entry into World War I, when a few senators filibustered to prevent the passage of a bill to arm U.S. merchant marine ships, Wilson famously called those senators “a little group of willful men, representing no opinion but their own.”

The filibuster, says Koger, “allows individual senators great influence about little niches of policy that they care deeply about.” He recalls 2005 when Hillary Clinton, then the Democratic senator of New York, and Senator Patty Murray (D–Wash.) placed holds, or threatened filibusters, on President George W. Bush’s nominee to head the U.S. Food and Drug Administration (FDA) until the agency issues a decision on whether to allow nonprescription sales of Plan B, the morning-after birth control pill. (The FDA had studied the matter, but indefinitely delayed announcing its conclusions.) “It was a way for a couple of senators with a deep interest in one issue to force some attention to their issue,” Koger says.

On the other hand, the filibuster also provides a way for individual senators to hold legislation hostage for unrelated reasons, such as Alabama Republican Senator Richard Shelby’s decision to place a “blanket hold” on or a threat to filibuster more than 70 of President Obama’s nominees until the Senate would vote to award two defense contracts worth more than $40 billion to his home state. Senator Shelby eventually released most of the holds without getting his earmarks.

The major downside to the filibuster’s guarantee of minority rights in a polarized Senate is that “it can be very frustrating to see legislation bottled up,” Koger acknowledges, especially if the minority is doing it to make the majority party look bad in an election year.

“If problems get solved, the majority party gets a lion’s share of the credit, and if nothing gets done and the wheel just spins, then the majority gets the blame, even if it’s the minority’s fault,” Koger says.

The Death of the Physical Filibuster
Most people who think of filibusters think of Jimmy Stewart’s performance in Mr. Smith Goes to Washington, the iconic Frank Capra film about a naïve freshman senator who opposes a corrupt public works project that will derail his proposal to build a boys’ camp. The fictitious senator speaks passionately and eloquently until he collapses.

Few senators have pulled that off in real life. In the 1930s Louisiana Democratic Senator Huey P. Long conducted several lengthy filibusters, during which he entertained his colleagues by reciting Shakespeare and reading recipes. In 1957 South Carolina Senator Strom Thurmond, then a Democrat, spoke for a record 24 hours and 18 minutes to filibuster the Civil Rights Act of 1957, using much of his time to read each state’s voting rights law, and conserving his voice by mumbling and using throat lozenges. In 1964 West Virginia Democratic Senator Robert Byrd spoke for more than 14 hours to filibuster the Civil Rights Act of 1964, a move he later said he regretted.

Those days are gone for several reasons, but chief among them is the Senate’s 1975 decision to change Rule XXII. Although the goal at the time was to make it easier to end filibusters, it also made filibusters much less painful to conduct.

Before the 1975 rule change, the Senate could end a filibuster with a two-thirds majority vote of those present, which had the effect of requiring many minority members to remain on the floor so they would have enough votes to continue in case a cloture vote was called.

Since the rule change, breaking the filibuster requires only 60 votes, but from the entire Senate, which is given at least two days to assemble. That means the minority can keep a filibuster going by simply threatening to filibuster, as long as it is reasonably sure the majority cannot muster the necessary votes to end debate.

If the majority party insists that the minority party carry out a physical filibuster, it takes just one minority member to hold the floor, and that member only has to speak for as long as there is a quorum, which requires 50 majority members to remain in or near the Senate chamber for quorum calls.

“The reason that Senate majority stopped [requiring the minority to conduct a physical filibuster] is that they knew they’d lose 99 times out of 100. It would be difficult for them to keep a majority in and around the Senate for long enough to wear down the minority,” Koger says.

While the majority senators are fighting a filibuster, the Senate obviously cannot conduct other business. But that is a steeper price to pay than it used to be, because the Senate has more work to do than it used to, Koger notes. Senators who stay near the floor to fight a filibuster also find it difficult, if not impossible, to campaign, fundraise, or spend time with family.

In 1988 Byrd, then the Senate majority leader, was so enraged by a Republican filibuster of campaign finance reform—he had failed seven times to muster enough votes for cloture—that he decided to force the Republicans to filibuster the old way. To make it easier for supporters of the legislation to stay within reach for quorum calls, Byrd ordered 50 cots placed nearby.

“Byrd knew that it was very difficult in modern age for the majority to wear down the minority. Everyone knew it was more of publicity stunt than anything else,” Koger says.

The filibustering senators found their job easy: they simply made repeated quorum calls, then left only one Republican on the floor, forcing the majority to produce 50 members to continue business.

After several rounds of this, Byrd exercised the seldom-used majority leader’s power to order the Senate sergeant-at-arms to round up members—in this case Republicans—for a quorum call. Many fled. One was confronted, but deemed too large to tackle. Eventually, the sergeant-at-arms, aided by six Capitol police officers, pushed into the office of former Senator Bob Packwood (R–Ore.), who had barricaded his door with a chair. During the commotion, Packwood’s already broken finger was further injured. His captors literally carried him into the Senate chamber.

It was great theatrics, but it did not change the fact that the Democrats could not muster enough votes to invoke cloture. “All that was achieved was that the Democrats successfully highlighted the fact that the two parties disagreed on campaign finance reform,” Koger says.

Theoretically, the Democrats could repeat Byrd’s strategy any time. But the reality is that if the majority does not have the 60 votes to end a filibuster, fighting a filibuster is usually more trouble than most senators find it is worth—especially now that filibusters have become quite common.

During the 110th Congress, the Senate logged 112 votes for cloture, more than double the number the Senate saw during any previous Congress, and astronomically higher than the rate between 1917 and 1970, when the number of cloture votes ranged from zero to seven per term. As of early June, the current Senate has held 58 votes for cloture.

It is one thing to battle a filibuster a few times a year, and quite another to do it weekly. “There’s a real opportunity cost in devoting a great deal of time to a prolonged filibuster,” Koger says.

The Shaheen–Harkin Proposal
The filibuster reform proposal that has received the most attention lately is the one sponsored by Senators Harkin and Shaheen. Binder calls their proposal “pretty good” because the succession of four votes, with a steadily lower number required for the majority, “gives both sides what they want. The majority gets to pass legislation with a [simple] majority vote, and the minority gets a chance to debate it and change senators’ minds.”

Binder, however, does not think the proposal has legs. “It’s hard to see the majority signing on to it,” she says.

Koger agrees the proposal is unlikely to succeed, to say the least. “The Harkin proposal is absolutely stupid,” he says, noting that a similar proposal put forward by Harkin in 1995 was defeated.

“The problem is, Harkin doesn’t seem to think through how senators will change their behavior if the rule gets adopted. The incentive it creates is for a minority to filibuster everything. Let’s say you have 51 votes to pass health care and I’ve got 49 against. Under the Harkin rule, when you vote the fourth time, then you have a majority and you can win.

“But what if, starting January 3, I just filibuster everything: the motion to provide funding to committees, approving the journal in the morning, renaming post offices in Oregon, every single piece of legislation. If I force your 51-vote majority to enforce cloture, I can multiply the number of votes required to do things in the Senate every day, to a point where you’ll want to negotiate, even though you’ve got theoretically enough votes to win. I can delay the Senate so much” that nothing can get done, Koger says.

The ‘Nuclear Option’
Senator Udall’s proposal, which he calls the “constitutional option,” was more popularly dubbed the “nuclear option” by former Mississippi Republican Senator Trent Lott in 2003, during a bitter fight over the Democrats’ use of the filibuster to block President Bush’s judicial nominees.

This involves using parliamentary procedures to change Senate rules so a filibuster can be ended with a simple majority. Critics, including Senate Majority Leader Harry Reid (D–Nev.), say the idea is a nonstarter because any attempt to change Senate rules can itself be filibustered. And in those special circumstances, according to current Senate rules, cloture requires 67 votes.

Udall argues that the Senate has the authority to sidestep those rules because the Constitution allows it to make its own rules; because the Constitution explicitly requires a supermajority vote in several specific instances, but not for rules change; and because the Supreme Court has upheld the principle that current legislative bodies may not establish rules that bind future legislative bodies. Udall further argues that contrary to traditional belief, the Senate is not a continuing body, but one that starts anew with each election cycle.

Instead of allowing itself to be bound by the 1975 iteration of Rule XXII, Udall proposes that the Senate adopt its own rules at the start of each election cycle, with a 51-vote majority. If any member objects, the leader of the Senate could call a point of order and rule that it only takes a simple majority to change Senate rules.

Udall’s proposal is not original. The idea was first put forward in 1957 by a previous New Mexico Democratic senator, Clinton Anderson. At that time, Senate rules did not provide a way to end a filibuster against a rules change.

That year, at the start of the 85th Congress, then-Vice President Richard M. Nixon went against the wishes of his fellow Republicans by taking up Senator Anderson’s cause. Nixon declared that, in his opinion as the presiding officer, the Senate was not a continuing body, but it was in fact created anew with each election cycle, and that each new Senate could adopt its own rules by a simple majority.

Anderson’s motion to change the rules was tabled. Later that year, as part of a deal to apply cloture to debate over rules changes, then-Senate Majority Leader Lyndon B. Johnson reversed Nixon’s ruling by declaring that Senate rules would continue from one Congress to the next, unless the Senate changed its rules in accordance with its rules.

Koger believes the Senate could change its rules using the method Senator Udall advocates (though, personally, Koger does not support doing away with the filibuster). “The rules of the Senate are subject to interpretation the same way the Supreme Court has latitude for interpreting the Constitution. The Senate has the same latitude to interpret its rules in radically different ways than they’ve been interpreted before,” Koger says. (By the same logic, Koger adds, the president of the Senate could rule that a simple majority could end a filibuster by temporarily suspending Senate rules.)

Delrahim, the former chief counsel and staff director for the Senate Judiciary Committee who is now based in Los Angeles as a shareholder specializing in antitrust for Brownstein Hyatt Farber Schreck, expects Senator Udall’s proposal to fail.

“That’s an interesting argument that reasonable people can have different views on,” Delrahim says. “This has been debated for 100 years…. But the Senate is actually a continuing body. Two-thirds of senators always remain and continue on to the next Congress. I think that argument [that the Senate is renewed with each election cycle] is something that would fail.”

Dove agrees: “Either the Senate has rules at the beginning of Congress or it does not. It has always considered itself to have rules. If [Udall’s] argument is valid and the Senate has no rules, then the Senate is offering [rules] under general parliamentary law. And the only problem for a senator who wants to change rules under general parliamentary law is that a motion to end debate requires a two-thirds majority.”

Delrahim does not think the current system, in which the Senate abides by rules established by previous members, is unconstitutional. Then again, “I don’t have any argument that what [Senator Udall is] proposing is unconstitutional.”

Senator Udall has not said how the filibuster rule should be changed; so far he is pushing only for the Senate’s right to change its rules.

Delrahim does not want to see Udall’s strategy used to outright kill the filibuster. “The filibuster itself is just a protection for debate. Otherwise, the minority would have no rights to debate,” he says.

Binder doubts the nuclear option will come to pass anytime soon. “I don’t really see it. Who knows whether there are 51 votes for doing it that way?” she says, adding that she is “hard-pressed to see the majority signing on to that strategy.”

One reason: if today’s Democratic majority uses the nuclear option, they open the door for a future Republican majority to do the same thing.

A Reversal of Responsibility
In his 15 years of studying congressional procedure, especially filibusters, Koger has come across several reform ideas he likes, including the one that puts the onus on the minority party to keep a filibuster going, rather than on the majority to end it. The idea was raised in a January 29, 2010, Roll Call article by Binghamton University political science professors Jonathan Krasno and Gregory Robinson.

Requiring the minority to muster 41 votes to continue a filibuster “is a reasonably small restriction. It doesn’t change the threshold [needed for cloture], but it reverses the responsibility in a way that restores the old balance of power in the Senate so people who are filibustering bear more of the cost than people who are in the majority,” Koger says.

“It reverses the obligation in a way I think is very healthy. It forces people to only wage a filibuster if they can [produce enough members in the Senate chamber] for a prolonged period of time,” he adds.

As an alternative, Krasno and Robinson suggested going back to a system that required three-fifths of those present to invoke cloture, as opposed to three-fifths of the entire Senate. That would allow opponents to call for immediate cloture votes, thus forcing supporters of the filibuster to keep members in or near the chamber at all hours of the day and night. That, plus limiting the amount of debate that takes place between invoking cloture and the up or down vote, would end the “effortless filibuster,” the professors wrote.

The Judicial Filibuster
Although Delrahim likes the role the filibuster plays in debates of legislation, he thinks it should not be used against judicial nominees.

“It’s something I recommended in 2001, that you would give 30, 100, or whatever is the appropriate number of hours to the Senate to debate [judicial nominees]. Then they would go and vote,” Delrahim says.

“I think the only way you can really do that” is to make the rule take effect in the future,” he says. “Back then I suggested that it take place for whoever became [President] No. 44, or at some future time where the current president does not get an advantage. I said that back when [George W.] Bush was president.”

In his role as chief counsel for the Senate Judiciary Committee in 2003, “I recommended that a number of former judiciary committee leaders … get together with the majority and minority leaders and … make the case for taking the filibuster out of the process for debating nominees,” Delrahim says. That way, the Senate “could bring [nominee debates] back to what I think they were intended to be. You give appropriate time for senators to debate, but you don’t cut it off by filing for cloture prematurely,” he explains.

If the Senate had a limited time to discuss nominees, they would be under pressure to make a decision based on the candidate as opposed to some unrelated protest. Under the current system, after a filibuster of a nominee, “as soon as one side has 60 votes for cloture, you see 99 votes for” the nominee, Delrahim says.

“The point is getting to an up or down vote, not taking away the Senate’s right to actually evaluate a nominee.”

He points out that the Constitution requires a supermajority vote in a few specific cases, including impeachment, expulsion of a member, ratification of a treaty, overriding a veto, and amending the Constitution. The Founders debated whether to also require a supermajority to confirm judicial nominees “and they went with a majority vote,” according to Delrahim. By allowing the filibuster of nominees, the Senate “imposed a 60-vote rule, which is more than the Constitution ever required. It really affects the balance of power that the Founders intended,” he says.

With judicial filibusters, “the Senate begins usurping more power than the Senate was intended to have. I question whether you can make up your own rules that are beyond the rules that are set out by the Constitution.”

Reconciliation
For now, majority parties have a powerful tool for sidestepping some filibusters: the reconciliation process. With it, the Senate can pass budget-related legislation as part of the budget reconciliation bill that, like the budget itself, cannot be filibustered.

Both parties have used reconciliation to pass many programs, including the creation of continuing health benefits, known as COBRA, in 1986; welfare reform in 1996; the Children’s Health Insurance Program in 1997; and a cut in Medicare reimbursement rates for prescription drugs in 2006, to name a few.

In 2005 Republicans tried to use the process to open the Arctic National Wildlife Refuge to domestic drilling, but they backed down under pressure from moderate Republicans.

Senator Byrd developed the reconciliation process more than 30 years ago for a totally different reason. Dove, the former Senate parliamentarian, recalls its origins well because he was part of its creation. He refers to its making as an example of “the wonderful doctrine of unintended consequences.”

It was 1974 and Dove, who had been working in the Senate Parliamentarian’s Office for eight years, was the second assistant parliamentarian. “Senator Robert Byrd called the Parliamentarian’s Office during recess in February. . . . He wanted someone to help with refashioning the Congressional Budget [and Impoundment Control Act]. The Parliamentarian and the first assistant were gone, and therefore I was the one who went to Senator Byrd’s office every day for 10 days. We went through that bill line by line. I’m the one who came up with the language that put a 50-hour time limit on budget resolutions and a 20-hour time limit on reconciliation,” Dove says. “Previous to that, there was no budget act. There was no such thing as reconciliation.

“I know why the reconciliation process was created. It was created to reconcile, as the word implies, the difference between the appropriation bills that are supposed to be passed in the summer and a second budget resolution that is supposed be passed in the fall. It was seen as a minor, almost ministerial, act,” Dove says.

In 1975, Dove recalls, then-Senate Finance Committee chair and Louisiana Democrat Russell Long used the reconciliation process for the very first time—to protect a tax bill from filibuster and nongermane amendments. But “from there until 1980, it wasn’t used at all, nobody really thought it was great new technique,” Dove says.

Then in 1980 “Republicans took control of the Senate, and in the spring of 1981, it was the view of the new Republican president, Ronald Reagan, that this was just a wonderful tool and it was used to put through his program. And it has been used by presidents over the years to put through their programs, whether it was Reagan or Clinton or George W. Bush.

“To get programs through, that was not at all the objective in creating this process, but it has become the reality,” Dove says. “It has been used in extraordinary ways we never dreamed.”

Schumer’s Reform Hearings
While the reconciliation process came under scrutiny once again this year during the health care debate, for now the Senate Rules Committee is more concerned with reforming the filibuster itself. This spring Senator Schumer, who chairs the committee, began conducting filibuster reform hearings. During those hearings, he called the filibuster “unhealthy” for the Senate.

Senate Minority Leader Mitch McConnell (R–Ky.) countered by accusing the Democrats of simply wanting to change the process to make it easier for them to advance their agenda.

Binder, who has testified before the committee on the early history of the filibuster, would like to see the Senate get rid of the rule. “It’s time to do way with it. It’s time to change Senate rules so the majority can get its work done. There’s absolutely no rationale for [requiring] 60 votes. Why 60? Why not 58? Why not 52?” she asks.

But she is not hopeful. In the near future, “I see possibly some attempt to tinker” with filibuster rules, Binder says. That might happen “if the Senate really took a bipartisan hit for” stopping business for a filibuster.

Unfortunately, she adds, “we don’t seem to be in that situation.”

Joan Indiana Rigdon wrote about the financial outlook of law firms in the April 2010 issue of Washington Lawyer.