What is the Filibuster, and why do the Democrats want to get rid of it?

photorandy2023

1 year ago

I have written several articles on postings related to politics. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on these political events.

The Filibuster Explained

The procedure, whose use has increased dramatically in recent decades, has troubling implications for democracy.

Traditionally, the Senate filibuster was reserved for only the most controversial issues, but its use has escalated in recent years, often slowing business in the chamber to a halt. Some lawmakers acknowledge that the filibuster, which has effectively set a 60-vote supermajority requirement for passing legislation in the Senate, could doom many of the proposals they have championed, including meaningful reforms on issues ranging from health care to climate change to gun control. Behind this dysfunction, the filibuster also has a troubling legacy: it has often been used to block civil rights legislation intended to combat racial discrimination.

As advocates push for pro-democracy legislation, calls for eliminating the filibuster have grown louder. In his remarks at the funeral of civil rights hero and congressman John Lewis in July 2020, former President Barack Obama called the filibuster a “Jim Crow relic,” arguing that the procedure should be eliminated if it is used to block voting reforms. Others note that certain types of legislation are already exempt from the filibuster’s supermajority requirement and argue that a similar exemption should be made for voting rights.

The stakes were raised in March 2021, when the For the People Act — a comprehensive democracy reform bill — was passed by the House of Representatives and introduced in the Senate, where the filibuster may determine its fate. Whether through elimination or reform, the filibuster cannot be allowed to impede the expansion of American democracy or the rights of all eligible voters.

What is a filibuster?

In the Senate, a filibuster is an attempt to delay or block a vote on a piece of legislation or a confirmation. To understand the filibuster, it’s necessary first to consider how the Senate passes a bill. When a senator or a group of senators introduces a new bill, it goes to the appropriate committee for discussion, hearings, and amendments. If a majority of that committee votes in favor, the bill moves to the Senate floor for debate.

Once a bill gets to a vote on the Senate floor, it requires a simple majority of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actually takes 60 votes to cut off debate, which is why a 60-vote supermajority is now considered the de facto minimum for passing legislation in the Senate.

What’s the history of the filibuster and its supermajority requirement?

Under original Senate rules, cutting off debate required a motion that passed with a simple majority. But in 1806, after Vice President Aaron Burr argued that the rule was redundant, the Senate stopped using the motion.

This change inadvertently gave senators the right to unlimited debate, meaning that they could indefinitely delay a bill without supermajority support from ever getting to a vote. This tactic is what we now know as a filibuster.

In 1917, the Senate passed Rule XXII, or the cloture rule, which made it possible to break a filibuster with a two-thirds majority. In 1975, the Senate reduced the requirement to 60 votes, which has effectively become the minimum needed to pass a law.

There are, however, exceptions to the filibuster rule. Perhaps the most notable recent example pertains to presidential appointments. In 2013, Democrats changed the Senate rules to enable the confirmation of executive branch positions — including the cabinet — and of non–Supreme Court judicial nominees with a simple majority. Four years later, Senate Republicans expanded the change to include Supreme Court appointments. Both changes invoked what is known as the nuclear option, or an override of a rule to overcome obstruction by the minority.

At times, the Senate has also exempted certain types of legislation from the cloture rule. For example, Congress’s annual budget reconciliation process requires only a simple majority vote and cannot be filibustered. Likewise, trade agreements that are negotiated using fast-track rules cannot be filibustered. Other exemptions apply to measures that involve, for example, military base closures or arms sales. In total, 161 exceptions to the filibuster’s supermajority requirement have been created between 1969 and 2014, according to an analysis by the Brookings Institution’s Molly Reynolds.

What’s the difference between “talking” and “silent” filibusters?

Filibusters traditionally involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. To stage such a “talking” filibuster, a senator would hold the floor by standing and talking for as long as they could, sometimes overnight. This was popularized in the 1939 film Mr. Smith Goes to Washington. The longest filibuster ever recorded, by South Carolina Sen. Strom Thurmond in opposition to the Civil Rights Act of 1957, lasted for more than 24 hours.

But since the early 1970s, senators have been able to use a “silent” filibuster. Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.

How has the filibuster been used to block civil rights progress?

Critics of the filibuster have pointed to its racist history — including its early uses in the 19th century by pro-slavery senators including John C. Calhoun of South Carolina, who used it to protect the interests of Southern white landowners who depended on slave labor.

The enactment of Rule XXII in 1917 gave rise to the modern filibuster, which has also been used to block civil rights legislation, especially during the Jim Crow era. In fact, this was one of the primary uses of the filibuster during the 20th century. According to a study conducted by political scientists Sarah Binder and Steven Smith, of the 30 measures that were derailed by the filibuster between 1917 and 1994, exactly half of them involved civil rights. Filibusters blocked measures such as anti-lynching bills proposed in 1922 and 1935; the Civil Rights Act of 1957; and legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing, and voting.

How has the filibuster changed over time?

The use of the filibuster, once reserved for only the most controversial issues, has increased dramatically in recent years alongside growing polarization in Washington. There have been more than 2,000 filibusters since 1917; about half have been in just the last 12 years. Critics argue that this increased use has slowed business in the Senate to a halt, often entangling the chamber in procedural maneuvering instead of substantive debate and, ultimately, lawmaking.

What has been the impact of increasing filibuster use?

The ongoing deadlock on certain issues has led to the use of the budget reconciliation rules to bypass the chamber’s procedural hurdles. Designed to expedite Congress’s budget process, reconciliation bills can pass with only 51 votes, compared to the de facto 60-vote requirement imposed by the filibuster. However, the budget reconciliation process is limited in scope, and analysts argue that it was not designed to handle the sweeping scale of legislation that marks its current use.

Critics of the modern filibuster have argued that the maneuver undermines the Senate as a governing body and its reputation as a consensus-building chamber. The mere threat of a filibuster silences debate and removes incentives to work toward compromise.

Overuse of the filibuster magnifies problems of representation endemic to the Senate, where small and large states alike are each represented by two senators. However, the population disparity between the largest and smallest states has increased significantly since the founding. Today, the 26 least populous states are home to just 17 percent of the U.S population. This means that a group of senators representing a small minority of the country can use the filibuster to prevent the passage of bills with broad public support.

Filibuster abuse also threatens checks and balances between the branches of government. The relative stagnancy of Congress — which is in large part due to the filibuster — has pushed presidents to increase their use of executive power, which in turn often goes unchecked because of Congress’s inability to act.

Some legal scholars argue that the filibuster may not even be constitutional, citing Article I, Section 5, which states that “a majority of each House shall constitute a quorum to do business.”

What options are available for filibuster reform?

As Senate gridlock persists, calls for eliminating the filibuster altogether have grown louder, especially given its historical complicity in perpetuating Jim Crow laws and thwarting civil rights legislation and voting reforms. Changing the Senate rules — particularly, Rule XXII — would be the most straightforward way to eliminate the filibuster, although such a change would require a two-thirds supermajority. The nuclear option is another way to eliminate the filibuster. Under this method, the Senate majority leader would use a nondebatable motion to bring a bill for a vote and then raise a point of order that cloture can be invoked with a simple majority.

Some advocates argue that voting rights legislation warrants an exemption from the filibuster, even if the procedure is not eliminated altogether. Stacey Abrams, the voting rights champion and former minority leader in the Georgia House of Representatives, has called on senators to lift the filibuster for election reform legislation such as the For the People Act. “Protection of democracy is so fundamental that it should be exempt from the filibuster rules,” she said, noting that the filibuster has already been suspended for judicial and cabinet appointments, among other measures.

Eliminating the Filibuster is a Bad Idea

The Founders intended the legislative process to be slow and deliberate, rather than prone to the whims of lawmakers seeking to score short-term political points at the expense of the long-term welfare of the country. Today, that deliberation, and what makes the Senate unique as a legislative body, is under threat.

Recent frustration with the workings of Congress has led to calls to speed up the legislative process regardless and make it easier to push through partisan priorities. More specifically, many in Congress and beyond are even calling for the elimination of the filibuster, claiming it is the source of congressional dysfunction.

While the filibuster can be used that way, doing away with it would further damage the process of legislating and subvert an existing check on power within the first branch of government. The filibuster may itself not be originally enshrined in the Constitution, but it is a long-standing norm consistent with the spirit on which our government was formed.

James Madison explicitly outlines the dangers of mob rule in “Federalist No. 10,” as well as the many ways government was structured to prevent it. And in “Federalist No. 63,” he warns of a scenario that is just as relevant today as the day it was written:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.

Make no mistake: recent calls to eliminate the filibuster are not driven by a belief that it would result in a better legislative structure, but rather by frustration at the inability to enact specific policy proposals. The legislative process may frustrate both sides who wish to push “urgent” priorities quickly into law while they are in power, but such actions risk creating the opposite effect when that side is inevitably in the minority.

As the New York Times opined in 1994, “[The Founders] certainly foresaw the possibility of gridlock, and they weren’t necessarily against it. They intended that the Senate should stop, deliberate, ponder and amend legislation more cautiously than the House.” Indeed, as the article further notes, the stated purpose of the Senate at the time of the Constitutional Convention in 1787 was to “check the inconsiderate and hasty proceedings” of the House.

The filibuster is a critical tool that ensures our legislature operates consistent with that vision, and as such, we will work to defend it.

The Filibuster Stops Progress On Solutions Most Americans Want

Since it represents states, not people, the Senate is undemocratic enough as is. As it is wielded today, the filibuster makes it even worse, further exaggerating the outsized power of a few senators who represent only a slim slice of the American electorate.

The Senate exerts near-total control over American lawmaking

US senators make or break progress for proposed legislation. Lots of bills pass the House only to die in the Senate. In fact, Senate legislation overrides House-passed legislation totally or partially 82 percent of the time. The Senate has the final say on treaties and federal court nominations too, including the Supreme Court.

US senators from smaller, whiter states hold excessive power

One might think that such a powerful body would be democratic, that its power would flow from the people. Not so. By design, the Senate represents states, not people, with the result that it grants people in small states more power than their counterparts in big states. In fact, since every state gets two senators no matter how many people live there, it works out that half of the US population has only 18 senators representing them, while 52 senators from the 26 smaller states stand for just 18 percent of Americans.

And, since the populations of smaller states tend to be overwhelmingly white (compared to larger, growing states where the electorate is more likely to be racially and ethnically diverse), white Americans have, on average, nearly twice as much representation in the Senate as Black and Hispanic Americans. Of the ten smallest states, seven are also in the top ten whitest.

Why Democrats want to change the Senate’s filibuster rules

The story of modern Washington is the story of the filibuster.

That’s the tactic of dragging out debate in the US Senate to make it harder to get things done. Thanks to Senate rules, whichever party is out of power has the ability, through filibusters, to quash nearly everything the in-power party wants to do unless the minority party agrees.

In the absence of any sign Republicans will work with Democrats to pass voting rights legislation, Senate Majority Leader Chuck Schumer has promised a vote on changes to filibuster rules by Martin Luther King Jr. Day on January 17. Changing the rules would allow senators to pass some legislation with a simple majority. But first, Schumer needs to convince the Senate’s most conservative Democrats, West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, to get on board.

Now, overcoming a filibuster to pass legislation in the Senate takes 60 votes — votes that Democrats don’t have without Republicans’ help.

Three of the most substantial legislative accomplishments of the past 12 years — President Joe Biden’s Covid-19 relief bill, former President Donald Trump’s tax cuts and former President Barack Obama’s Affordable Care Act — were only achieved by one party finding a way around the filibuster.

Here’s how the filibuster has made accomplishing anything on Capitol Hill incredibly difficult:

What is a filibuster? A filibuster is any use of obstructive tactics that would prevent a bill or measure from coming to a vote. Filibusters are most famously thought of as long-winded speeches like in “Mr. Smith Goes to Washington” but there are no clear rules on what form a filibuster should take, including how long it lasts. As a result, the mere threat of filibustering a bill can be enough to delay or block its passage.

How can a filibuster be beaten? The filibuster is not in the Constitution and is generally recognized as an accident of Senate rules. A bill is considered “filibuster-proof” if it has the support of at least 60 senators (it used to require 67 until a rule change in 1975). But few bills meet that criteria in today’s hyper-partisan political climate, especially with the Senate’s current 50-50 split between parties.

The only formal rule that can end a filibuster is the second paragraph of Senate Rule XXII, otherwise known as the cloture rule.

Invoking cloture just places a time limit on a bill’s consideration and provides it with a path to move forward.

Fifty years ago, cloture was almost never invoked. Today, filibuster threats are so common, cloture is required for nearly everything the Senate does. An added wrinkle is that bringing a bill to a vote requires unanimous consent — in other words, all 100 senators have to agree to hold a vote on a bill, an amendment or a presidential nomination.

If every senator is not on the same page, then the bill can only advance by breaking a filibuster on a motion to proceed — and that time-consuming process can take at least two days just to begin debate. In today’s Congress, these votes to bring bills to a vote are often just another chance to filibuster.

Cloture votes to overcome filibusters have risen sharply over 50 years

Before 1970, there were fewer than 10 votes on cloture in any year. Cloture gradually grew more frequent as rule changes made it easier to invoke, but votes have soared well into the hundreds over the last 15 years. The 117th Congress has already held 155 cloture votes since January 2021.

Cloture rules have changed over time. The cloture rule was revised in the 1970s to require 60 votes instead of 67. In 2013, Democrats under former Senate Majority Leader Harry Reid changed the voting precedent through what’s known as the “nuclear option“ to confirm Obama’s Cabinet nominees with a simple majority rather than a 60-vote supermajority. Republicans then used that same option in 2017 to advance Trump’s Supreme Court nominees. Those are the two exceptions; a supermajority is required to vote on and approve any other kind of Senate business.

Invoking cloture takes time. Lots of time. Even when cloture is invoked to end a filibuster, the time needed for the cloture process to play out can take time away on the calendar from other legislative business. Even after cloture is invoked, passing a bill can still take two weeks if the minority party insists on dragging things out.

Let’s take a look at the cloture process for a typical bill. (And, remember, senators are often not in session on Mondays and Fridays, so this calendar is very much an idealized sample schedule.)

Step 1: Say Democrats have a draft bill ready for a vote on the Senate floor, but they expect some level of opposition. Because voting on a bill requires the approval of all 100 senators (“unanimous consent”), on Monday, a senator instead takes the extra step of moving to take up the bill for consideration. That’s a motion to proceed, the act of bringing the bill to the floor when unanimous consent can’t be reached.

Step 2: A motion to proceed requires a vote and can be filibustered. If a filibuster has already begun or is expected, the senators in favor of the bill can present a cloture motion that same day.

Step 3: Cloture would end debate, stopping the filibuster, but it also requires a vote. Under the cloture rule, however, that vote can’t happen until two days later, on Wednesday, the second day of session after the motion is made.

On Wednesday, the Senate votes to invoke cloture on the motion to proceed. Assuming the bill’s supporters succeed in securing 60 votes, the filibuster is shut down.

If the cloture vote is a success, a 30-hour period of consideration begins before senators can first vote on the motion to proceed. This includes time used for debate, roll call votes, quorum calls and other such actions.

But that’s 30 session hours, not 30 chronological hours.

Assuming the Senate keeps to eight hours in session per day, Monday through Friday, that period lasts nearly four workdays. By the time they vote on the motion to proceed (step 4), it’s now mid-afternoon on the following Monday.

If that vote to proceed succeeds, the bill can head to the floor for consideration. Senators who oppose the bill might not be done yet. Now they have a second opportunity to initiate another filibuster, this time on the bill itself.

Stopping this requires those in favor of the bill to file another cloture motion (step 5).

Step 6: Like with cloture on the motion to proceed, the vote to invoke cloture on the bill itself takes place two days after the motion is filed, on Wednesday.

If the bill’s defenders garner enough votes for cloture, then this begins another 30-hour period of consideration before the final vote can take place.

Step 7: When the vote to pass the bill begins, it’s now the following Monday. That means the Senate has spent 15 calendar days on these filibuster-preventing actions before they can vote on the bill itself.

The Senate can speed up the process, but only if there’s an agreement from all 100 senators to quickly schedule a vote.

Cloture ends filibusters because it ends everything else, too. According to Senate Rule XXII, once the Senate invokes cloture, “then said measure, motion or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.” In other words, senators have to hit the brakes on everything but that clotured bill until they’ve brought the bill to a vote.

Now, instead of debating legislation one bill at a time, lawmakers cram as much into every bill as they can. There are fewer bills passed. They’re just much, much longer. The 80th Congress of 1947 and 1948, which President Harry Truman famously attacked as the “Do Nothing Congress” during his 1948 re-election campaign, enacted 906 bills. That’s more than three times the 283 bills that the 116th Congress produced in 2019 and 2020.

More aggressive filibustering has contributed to fewer and longer bills

The 116th Congress enacted 283 laws over 2019 and 2020, which ties 2011 and 2012 for the fewest new laws of any Congress since Harry Truman was president in 1948. As fewer bills break through, the number of provisions crammed into bills has increased, resulting in longer bills.

Why not end the filibuster? Republicans don’t want to give up their power. And some Democrats, like West Virginia’s Manchin, warn that if Washington seems hyper-partisan now, it would get much worse if one party could pass a bill without help from the other. His vote would be necessary to reinterpret the rules. Manchin and Biden both suggested earlier in 2021 that Congress revert filibusters to the talking-only, Mr. Smith style that was the norm before the 1960s. Pressure could build on Manchin, however, if the filibuster keeps Democrats from delivering on Biden’s campaign promises.

Ahead of the Senate vote on whether to establish the Jan. 6 commission, CNN asked Manchin if he would invoke the nuclear option to blow up the filibuster if Republicans block the bill.

“No,” he told CNN. “I can’t take the fallout.”

That all but ensures that the filibuster is here to stay.

The filibuster allows the minority to routinely obstruct the will of the majority, derailing even the most popular bills

The Senate’s design already gives outsize voice to a tiny minority of Americans. The filibuster makes it even worse. By effectively requiring a supermajority—or at least 60 votes—instead of just 51, this procedural relic has become a kill switch for even the most popular legislation, further narrowing who gets to decide what the country can or can’t do. What a majority—or even a supermajority—of voters want no longer matters; the filibuster allows a minority of senators representing only one in five US voters to call the shots for everyone else. That’s right, senators for 20 percent of the population can control what is possible for all of us.

Apologists plead that the filibuster promotes bipartisanship. If only that were true. In contrast, it incentivizes the minority party to obstruct. When the majority party has a credible threat of passing something, it is in the minority’s interest to come to the table and help shape the thing before it becomes law. But nothing has a credible threat of winning a supermajority in the Senate, so the minority is better off creating gridlock than participating in a win for the majority. The filibuster gives the minority the power—and political incentive—to kill even proposals with broad support across party lines, and bills that passed with bi-partisan support in the House.

Over and over again, 41 senators representing only 21 percent of Americans can deploy the filibuster to block progress, and even prevent a vote. Take these policy proposals that don’t stand a chance against the threat of a filibuster despite strong popular support:

65 percent of US voters say gun laws should be stricter.
61 percent of US voters say the Senate should pass the increased background check bills already passed by the House, including 55 percent of gun owners.
74 percent of all voters support the George Floyd Justice in Policing Act, including 88 percent of Democrats, 78 percent of Independents, and 55 percent of Republicans.
Over half of US voters support cancelling student loan debt. Eighty-five percent of US voters, including 76 percent of Republicans, support cancelling student loan debt up to $20,000 per person.
68 percent of US voters support an ultra-millionaire wealth tax proposal, including 81 percent of Democrats, 66 percent of Independents, and 57 percent of Republicans.
66 percent of US voters support the Green New Deal to curb climate pollution and invest in jobs and infrastructure.
At least 67 percent of US voters support HR1, the For the People Act to protect voting rights, including 56 percent of Republicans, 68 percent of Independents, and 77 percent of Democrats.

41 senators representing only 21 percent of Americans can block all these solutions.

Usually, voters shouldn’t have to know every procedural rule the Senate employs. But with so many dire problems facing our country, and a moderate president with an ambitious agenda at the helm, we can’t stand by and let the filibuster render solutions dead in the water any longer. It’s time for voters to demand the Senate throw off its self-imposed shackles and become the functioning lawmaking body the Constitution envisioned.

We’ve created some graphics to draw attention to all the important and popular policies the filibuster can block, and the dire need for filibuster reform. Find a zip of social media visuals to share with your networks.

Resources

brennancenter.org, “The Filibuster Explained.” By Tim Lau; rstreet.org, “Eliminating the Filibuster is a Bad Idea.”; sightline.org, “The Filibuster Stops Progress On Solutions Most Americans Want.” By Kristin Eberhard; cnn.com, “Why Democrats want to change the Senate’s filibuster rules.” By Christopher Hickey and Zachary B. Wolf;