The Democratic class of 2008 arrived with President Obama, expecting to usher in a dynamic new era. Instead, their young Senate careers have passed in a daily slog of threatened filibusters and “secret holds”—when a senator anonymously objects to bringing an appointment up for a vote, which requires unanimous consent. On April 20th, Claire McCaskill took the trouble to read off the names of fifty-six Obama nominees languishing in the limbo of secret holds, and Jon Kyl objected to every one of them. Just getting a bill to the floor for debate can require days of tactical gamesmanship between the party leaders. There were times when Warner wondered if anyone had ever quit in the first year. Michael Bennet said, “We find ourselves at a moment in our history when the questions are huge ones, not small ones, and where things have been put off for a really long period of time.” He mentioned the national debt, energy policy, and the financial crisis. “Yet you have a Senate that’s designed not to advance change but to slow it.”
Grassley and Ron Wyden, of Oregon, have been trying since 1997 to end the practice of secret holds, without success. In 2007, the Senate passed a bill banning secret holds that last longer than six days. But to get around the ban two or more senators can pass the hold back and forth—it’s called “rolling holds”—and their party leader facilitates the game by keeping their names secret.
Many of the Senate’s antique rules and precedents have been warped beyond recognition by the modern pressures of partisanship. The hold, for example, was a courtesy extended to senators in the days of horse travel, when they needed time to get back to Washington and read a bill or question an appointee before casting their vote. Sarah Binder, who co-authored a book on the filibuster, calls the procedure a historical accident: in 1806, the Senate got rid of a little-used rule that allowed the “previous question” to be called to a vote. Suddenly, there was no inherent limit on debate, and by the eighteen-thirties senators had begun taking advantage of this loophole, derailing the proceedings by getting up and talking until their voice, legs, or bladder gave out.
In 1917, Woodrow Wilson, with his wartime legislative agenda blocked by filibusters, forced the Senate to pass Rule XXII, which allowed a two-thirds majority to bring a floor debate to an end with a “cloture” vote. For decades, the rule was rarely used; between 1919 and 1971, there were only forty-nine cloture votes, fewer than one per year. In the seventies and eighties, the annual average rose to about a dozen. (Frustration with this increase led the Senate, in 1975, to lower the threshold for cloture to sixty votes.) In the nineties and early aughts, the average went up to twenty-five or thirty a year, as both parties escalated their use of the filibuster when they found themselves in the minority. After the Republicans lost their majority in 2006, filibusters became everyday events: there were a hundred and twelve cloture votes in 2007 and 2008, and this session Republicans are on target to break their own filibuster record.
Under McConnell, Republicans have consistently consumed as much of the Senate’s calendar as possible with legislative maneuvering. The strategy is not to extend deliberation of the Senate’s agenda but to prevent it.