Dear George,
I’m by no means a political junkie, but I try to keep abreast of the news as best I can. Recently I’ve been confused about all the controversy regarding use of the ilibuster in the Senate. The Democrats are pressing for reform but can’t get consensus in their own ranks. Joe Biden has changed his opinion in recent months. What’s been most confusing to me is how the filibuster is connected to 60 votes being necessary to pass legislation in the 100-member Senate. After some reading I did manage to figure that out. Here’s what I learned about that and other matters.
Love,
Dave
What is the definition of “filibuster”? The U.S. Senate defines “filibuster” as “the tactic of using long speeches to delay action on legislation.” (11)
Where does the word “filibuster” come from? The word derives from the Spanish “filibustero” (“freebooting”), a reference to 16th century pirates who plundered ships and colonies. Its first use in a political sense occurred in the late 1800s when it was an insult directed toward lawmakers who held up legislation by effectively “raiding” the Senate like pirates. (4)
When did the filibuster begin in the Senate? The filibuster is not part of the Constitution, nor was it recognized in original Senate rules. The original rules specified that cutting off debate of a motion required a simple majority. The filibuster was accidentally created in 1806 when Vice President Aaron Burr argued that the rarely used majority rule was redundant, and the Senate eliminated it as a housekeeping matter. Though not their intent, the change gave senators the right to unlimited debate, meaning that they could indefinitely delay a bill without ever getting to a vote. The filibuster wasn’t used regularly until the mid-1800s when Southern senators employed the tactic to block debate over abolishing slavery. In order to support the American war effort in World War I, the Senate in 1917 passed the cloture rule which made it possible to end a filibuster with a two-thirds majority. Because a two-thirds majority proved difficult to obtain, the Senate in 1975 reduced this requirement to 60 votes. While a final vote to pass legislation in the Senate requires a simple majority of 51 votes, a supermajority of 60 votes is needed to start or end debate on the bill. Consequently 60 votes has become the minimum needed for most bills to advance to a vote. In a highly partisan, polarized Senate with a 50-50 split between parties, obtaining 60 votes to end a filibuster is often impossible. (1, 3, 16)
What’s the difference between “talking” vs.“silent” filibusters? Originally, filibusters involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. The longest filibuster ever recorded was by South Carolina Senator Strom Thurmond, whose speech opposing the Civil Rights Act of 1957 lasted for over 24 hours. Since the early 1970s, however, senators have been able to use a “silent” filibuster. Any time a group of 41 or more senators threatens a filibuster, the Senate majority leader, knowing the legislation lacks sufficient support, can refuse to call a vote and instead moves on to other matters. Use of the filibuster escalated dramatically with the availability of the silent filibuster. Of the more than 2000 filibusters in the last century, over half have occurred in the Obama, Trump, and Biden administrations. (3)
Are there exceptions to the filibuster rule? Yes, in 2012 Democrats changed Senate rules to enable confirmation of executive branch positions (e.g., Obama’s cabinet) and non-Supreme Court judicial nominees by a simple majority vote. In 2017 Senate Republicans expanded this change to include Supreme Court appointments, enabling President Trump to fill three Supreme Court vacancies over the course of his term. Both changes involve what is known as the “nuclear option”, i.e., changing a Senate rule to pass legislation with a simple majority and overcome obstruction by the minority. (“Nuclear” because both parties saw it as an unthinkable final recourse, much like nuclear war.) “Budget reconciliation” is one such way to get around the filibuster. That is, a bill may be passed with a simple majority if all of its provisions relate to the federal budget. This process was used to pass the Democrats’ $1 trillion spending package to help people struggling during the pandemic (the American Rescue Plan). In addition, the Senate has also exempted certain other types of legislation from the 60-vote requirement, e.g,, certain trade agreements, military base closures, arms sales. (2, 9, 10)
What are pros and cons of the filibuster? Pros include the argument that the filibuster makes the Senate more deliberative and prevents hasty legislation from being pushed through without adequate debate. It’s also argued that the filibuster encourages bipartisan compromise, forcing the majority to negotiate a version more acceptable to the minority, thus protecting rights of the minority party. Without the filibuster, the majority party would be able to pass anything for which it could get a simple majority. The major con is that the filibuster has made accomplishing anything in Congress extremely difficult. In effect, it’s argued that the filibuster gives the Senate minority too much power. Additionally use of the filibuster prevents other critical issues from being addressed. In the current congress Republicans have used the filibuster to successfully block legislation on police reform, immigration reform, voting rights, and a host of other measures. Finally, no other part of the government requires a super-majority to pass a law. (7, 15)
What are options to reform the filibuster? Six options are evident. First, eliminate the filibuster altogether. (However, ending debate on changing the Senate’s standing rules requires a two-thirds majority, making this change extremely unlikely.) Second, use the nuclear option in which the Senate majority leader would use a nondebatable motion to bring a bill to a simple majority vote. Third, go back to the talking filibuster and require that objectors to a bill be present with one of them speaking at all times. Fourth, shift the burden onto the filibustering Senators to muster the required number of 41 votes to maintain the filibuster (instead of requiring votes from 60 who wish to proceed). Fifth, get rid of the 60-vote hurdle to start debate on a bill but keep it in place for ending debate. Sixth, do not eliminate the procedure altogether, but make an exemption for voting rights legislation and other pro-democracy measures (similar to the existing procedure for budget reconciliation). (3, 5, 14)
What is likely to happen with the filibuster? The future is uncertain. Many Democrats see the 60-vote rule as a stranglehold on their agenda, and the pressure to pass at least some party priorities is pushing Democratic leaders to call for filibuster changes. Last week the Democrats brought to the floor a proposal to change Senate rules to force GOP senators to use a talking filibuster in their opposition to voting rights legislation. However Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) opposed the proposed rule change, resulting in its defeat. Nonetheless, there is near-unanimous support for filibuster reform among Democrats, and if they are able to hold the House and add a few Senate seats in 2022, experts suggest that change is likely in the near future. In 2022 the late Senate Majority Leader Harry Reid predicted: “The filibuster is on its way out, It’s not a question of if but when. It may not be tomorrow or six months from now, but the filibuster is doomed for failure. You can’t have a democracy that requires 60 percent of the vote on everything.” (6, 7, 13)
SOURCES: (1) abcnews.go.com, “What is the Senate filibuster?; (2) ballotopedia.org, “Filibuster and reconciliation in the United States Congress”; (3) brennancenter.org, “The Filibuster, Explained”; (4) britannicacom, “filibuster: parliamentary tactic”; (5) brookings.edu, “Filibuster reform is coming — here’s how”; (6) brookings.edu, “What is the senate filibuster, and what would it take to eliminate it?”; (7) cnn.com, “Why Democrats want to change the Senate’s filibuster rules”; (8) filibusterreform.com, “What is a Filibuster and Why Reform is Good”; (9) nbcnews.com, “The Nuclear Option: What It Is and Why It Matters”; (10) nor.org, “Senate Democrats plan a vote to change the filibuster. So what is it?”; (11) senate.gov, “About Filibusters and Cloture: Historical Overview”; (12) theblaze.com, “2 pros and 3 cons of ending the filibuster”; (13) thehill.com, “Democrats say change to filibuster just a matter of time”; (14) thehill.com, “Manchin: ‘Heavy lift’ to change the filibuster through nuclear option”; (15) thinkehevote.com, “Should the Senate Reform the Filibuster?”; (16) usatoday.com, “What is the filibuster?”
