End the Filibuster

enough is enough

The filibuster (also known as Senate Rule XXIII) is a procedure exclusive to the United States Senate. It permits senators to extend legislative debate in order to prevent a bill from coming up for a vote. There no rule limiting senators’ speaking time, the majority cannot terminate debate and bring forward a vote as long as one or more senators continue addressing the presiding officer. 

The filibuster dates back nearly two centuries. It was first used to prevent the Senate from voting on a bill in 1837.  The House also had filibusters until 1842, when the body’s size caused the adoption of a rule allowing a simple majority to limit debate time.

In 1917, the Senate altered the filibuster by passing a rule allowing for cloture. Cloture ends debate on a proposal by a two-thirds vote. In 1975, the cloture threshold was reduced to a three-fifths vote-60 of 100 senators.  Although cloture motions were intended to allow the easier termination of filibusters, the number of filibusters dramatically increased after 1970, when the Senate implemented a “two-track system” for dealing with filibusters.

This two-track system allows the body to continue working on elements of a bill being filibustered as alternative to bringing the business of the Senate to a screeching halt. These adjustments provided some measure of protection for legislation under discussion in the Senate, but filibusters became easier for the minority to sustain since they became less of an impediment to the Senate’s business.

Those who defend the filibuster contend that it keeps the majority from abusing its power. This is despite the fact that the framers’ idea was for Congress to conduct business by simple majority voting, with a few exceptions, such as impeachment charges for the president, ratification of treaties, and expelling a member from Congress.

The longest filibuster on record lasted twenty-four hours, courtesy of South Carolina’s segregationist Senator Strom Thurmond against the Civil Rights Act of 1957. Since the change in 1970 though, Senators are permitted to simply submit an intent to filibuster in writing. There is no need to speak, making rampant the blocking of votes in the body.  This immediately raised concerns about the filibuster being used for pure obstruction.

The Republicans became fed up with successful filibusters of George W. Bush’s court nominations. In response in 2005 the Republican majority in the Senate introduced what is known as the “nuclear option.” This is a parliamentary procedure allowing it to bypass the three-fifths cloture rule and confirm nominees to federal district courts with simple majority support.

In 2013, frustrated by Republican filibusters, the Democratic majority invoked the nuclear option again, this time for executive branch and non-Supreme Court judicial nominees.  In 2017 the Republicans regained control and then Majority Leader Mitch McConnell invoked the nuclear option for Supreme Court nominees in order to avoid Democratic opposition to then-Supreme Court nominee Neil Gorsuch.

There are several other situations where the filibuster cannot be used. These are the budget reconciliation process and occasions of f the president’s exercise of emergency powers. Otherwise, most of the Senate’s activity (such as it is) today is subject to filibuster.

Opposition to the filibuster comes mostly from Democratics and from legal experts who argue that it is perpetually used as a means of obstruction rather than a legitimate method of moderating Senate debate.

If the filibuster be abolished entirely and the nuclear option invoked for executive- and judicial-branch nominations, power rests in the hands of the sitting president and a majority of Senators. Both sides have used this to advantage.

Removing the filibuster for other Senate business would probably aid in passing legislation on controversial issues such as health care and immigration. Simply put, abolishing the filibuster would instantly make the Senate a more majoritarian institution, more efficient at legislating, albeit less concerned with consensus building. That is not relevant today-consensus is a pipe dream.

Accordingly, one of the most important things a Democratic majority must do is end the filibuster. There is no Constitutional basis for it, and it in fact violates the spirit of the Constitution’s expressed intention to limit supermajorities. The primary areas envisioned as requiring extra majorities are impeachment, constitutional amendments, treaties and veto overrides.

The existing rules render majorities functionally irrelevant. The filibuster is nothing more than a vehicle for obstruction. It is telling that it has been used often to thwart needed social change. Civil rights have been the most prominent targets. As former Senator Tom Udall of New Mexico put it, “every vote in the Senate now is sixty votes, which is what you need to cut off the debate. The will of the majority is blocked by a minority. You have tyranny of the minority—and the public doesn’t even realize it.”

The evidence that the filibuster is out of control is clear and incontrovertible. In the 1960s, less than 10% of legislation was stalled because of filibusters. Today, the number is close to 70%. It is no wonder nothing gets done anymore.

The only references to a supermajority were in the Constitution related to the approval of treaties or convicting an impeached president. It is ironic that some senators, notably Joe Manchin complain endlessly that the Senate gets nothing done, and yet Manchin is unalterably opposed to ending the filibuster for reasons only he can fathom. Eventually it will be eliminated, almost certainly by the Democrats, once Manchin and other opponents are gone and the majority of senators finally sees it for what it is: a vehicle to prevent Democrats from getting anything done, so McConnell and his flock can go home in the next election and accuse the Democrats of not getting anything done.

Majority vote should be the order of the day for all situations except for impeachment and ratification of treaties. Majority rule is a bedrock principle underpinning any democracy, and it must be restored if the public is to have any confidence in the legislative branch. Time and again, the Republicans have seen to it that vital legislation that would positively affect the lives of both Republicans and Democrats never sees the light of day.

Enough is enough. If the Democrats can manage the trifecta, they must make getting rid of the filibuster one of their primary tasks after the 2024 elections. That will require that Majority Leader Chuck Schumer and Majority Whip Dick Durbin step up and force the issue. There has been too much fear of how the Republicans will react.

We shouldn’t care-they would kill it in a heartbeat if it served their interests, as they did a few years ago. Ending the filibuster is the only way to achieve all of the objectives set out by Democrats this campaign. Let’s win this election and finally make it happen.