Time to Reform the Senate Filibuster Rule?

​Once again, a major piece of legislation comes to a grinding halt in the United States Senate. Even though the Democrats control both Houses of Congress and the White House, they have been blocked by the Republicans from passing voting rights legislation. How can the minority party in the Senate hold so much power? Simply put, the Senate filibuster rule. What is the senate filibuster rule, and is it time to reform or eliminate it altogether? In order to answer these questions let’s take a look at the history of the filibuster and give it some perspective.

​What is the Senate Filibuster: Originally senators had the right to unlimited debate on the Senate floor and could prevent a vote on a bill by running out the clock with prolonged speeches.  Under the current rules of the Senate, it takes 60 votes to end debate and move most bills to a vote. Without the 60 votes needed to end debate and move to a vote (a process called “cloture”), the filibuster rule essentially blocks the bill from proceeding.

​History of the Filibuster: The filibuster is not found in the Constitution and became possible with an inadvertent change to the Senate rules in 1806. Under the original Senate rules, cutting off debate required a motion that passed with a simple majority. The rule was dropped at the suggestion of Vice President Aaron Burr since it was seldom used and apparently not needed,   https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/. This rule change had the unintended consequence of giving senators the right to unlimited debate without any formal way to end it.

Seldom used prior to the Civil War, senators learned that they could prevent a vote on a bill that they opposed by tying up the Senate floor with endless speeches. The “talking filibuster” was born.

In 1917 the Senate passed Rule 22, the first cloture rule. This rule allowed debate to end and a vote taken on a pending bill with a two-thirds majority vote by the senators present in the chamber.
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In 1975 the Senate reduced the number of votes needed to end debate to three-fifths of the senators present. When the Senate is at full strength, 60 votes are required to end debate and put the measure up for vote (invoking cloture). 

​Silent Filibuster: On occasion, senators still take to the Senate floor and give protracted speeches in the style of “Mr. Smith Goes to Washington”. But this is rarely used anymore to prevent a bill from moving forward. It takes 60 senators to invoke cloture and move a bill forward. Therefore, as few as 41 senators can derail any piece of legislation by opposing a cloture motion. In practice, anytime 41 or more senators simply threaten to filibuster a piece of legislation, the Senate majority leader will not bring it up for consideration. In theory, any or all of these senators could filibuster on the Senate floor indefinitely, with no mechanism to end the debate. It would be a waste of time for the Senate to consider a piece of legislation that doesn’t have the 60 votes needed. 

​Exceptions to the Filibuster Rule:

• Budget Reconciliation: Congress’s annual budget reconciliation process requires only a simple majority vote in the Senate and cannot be filibustered. What can actually appear in a reconciliation bill is limited to tax and spending issues, and must pass the scrutiny of the Senate Parliamentarian,  https://www.brennancenter.org/our-work/research-reports/filibuster-explained. President Biden used the reconciliation process to get his American Rescue Plan Act of 2021 through Congress without any Republican support.
• Presidential Appointments: As of 2013, only a simple majority is needed to confirm nominees to fill cabinet positions and other executive branch positions, as well as federal judges.
• Supreme Court Appointments: As of 2017, a Supreme Court nominee can be confirmed by the Senate with a simple majority of votes.
• Other Exemptions: There are 161 exceptions to the filibuster’s supermajority requirement. These include trade agreements, military base closures and arms sales. 

​Reasons to Keep the Filibuster Rule:  The Senate is often touted as a “deliberative body” and the “consensus-building” chamber of Congress. The very nature of the filibuster rule requires a consensus of 60 or more senators for any major legislation to be passed. Since it is rare for any political party to have a supermajority, the majority party must reach across the aisle and win the support of some members of the minority. This protects the rights of the minority party which may otherwise have no voice in the legislative process.

The crafting of legislation is better served through bipartisanship and the give and take of negotiations in the building of a coalition around a piece of legislation. If the traditions of the Senate were practiced, and the political parties were actually interested in building a consensus, then the filibuster rule as it stands would be fine. 

​Reasons to End or Modify the Filibuster Rule:

• Senate Gridlock: Traditionally the filibuster has been used only rarely, and for the most controversial issues. But its use has escalated in recent years to the point that very little legislation is done in the Senate. The mere threat of a filibuster will bring any piece of legislation to a grinding halt.
• Political Weapon: The filibuster has been turned into a political weapon by the minority party to stymie the legislative agenda of the majority party. Mitch McConnell used this tactic very successfully in blocking President Obama’s agenda and is doing the same to President Biden. The filibuster is not being used to forge consensus, put forth better legislation, or to better the lives of the American people. It is simply being used to prevent the opposing party from getting a political win. This has allowed the minority leader (Mitch McConnell) to become the de facto gatekeeper for legislation in the Senate.
• Stymies Debate: Without the required 60 votes needed to bring a bill to the floor for debate and a vote, it isn’t even considered. The American people are denied hearing the reasoning behind a Senator’s support or opposition to a particular bill.
• Legislation by Executive Order: Due to the inability of the Congress to pass legislation, Presidents have resorted to the use of Executive Orders to advance their policy agendas. This undermines the checks and balances built into the Constitution. Executive Orders are often overturned by the next administration and are no substitute for legislation. 
• Undemocratic: A bill can be passed in the Senate with a simple majority of Senators. That is how the framers of the Constitution intended. But the reality is, most bills must first get over the 60- vote threshold. That is not democratic, and is not found in the Constitution. 

​Proposed Changes to the Filibuster Rule: The Constitution gives each chamber of Congress the right to write its own rules. So, any change to the filibuster must come from the Senate. The process of changing the rules of the Senate is complicated, and not all rules are treated the same. Some can be changed by a simple majority and others require a two-thirds majority vote,  https://sgp.fas.org/crs/misc/R42929.pdf. Here are some of the proposed changes to the filibuster that various politicians and think tanks are considering:

• Eliminate it altogether. This would be the simplest solution, but very hard to achieve. Senate Rule 22 (filibuster rule) is a standing rule. Standing rules require a two-thirds majority vote to eliminate. Republicans are in favor of the filibuster, so this would never fly.
• Lower the cloture threshold from 60 to 55. This seems more reasonable.
• Require old school “talking” filibusters rather than merely threatening them (silent filibuster).
• Set a new precedent. This is also known as the “nuclear option”, used by Harry Reid in 2013 and Mitch McConnell in 2017 to change the filibuster rule. There are several hoops to jump through, but can be accomplished by the majority party with a simple majority of Senate votes.
• Exempt certain types of legislation from the filibuster rule that have national security implications or are necessary to strengthen or preserve the democracy. Such as voting rights. 

​If I had my way, I would eliminate the filibuster rule altogether and restore the original Senate rules regarding the motion to end floor debates with a simple majority, the way it was prior to 1806. Short of this, I would eliminate the silent filibuster and make senators stand on the Senate floor and defend their opposition to the pending bill.

​In recent days President Biden indicated that he would support a change to the filibuster rule in order to get his voting rights legislation pasted. But Democrat Senator Krysten Sinema threw a wet blanket over that idea when she proclaimed in a floor speech that she would not support any changes to the filibuster rule. 

Democrat Senator Joe Manchin also reiterated his position that he would not support a “carve-out” to exempt voting rights legislation from the filibuster rule. Both Senators Manchin and Sinema support voting rights legislation, but without their support for a change to the filibuster rule, it cannot survive in the face of complete Republican opposition.

Another victory for the minority party, and renewed calls to do something about the Senate filibuster rule. 

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Thanks,
Armchair American