The Filibuster Rules Must Be Changed

The Senate tactic known as the filibuster is designed to prolong debate on a bill in order to delay or to prevent voting on the bill. It came into the Senate Rules in 1806 and, importantly, is nowhere to be found in the Constitution or other founding documents. It is an administrative rule for the Senate alone. Rules can change. This one is steeped in over two hundred years of usage and custom and is ingrained in the heart of the Senate. In 1917, with Senate Rule 22, for the first time the Senate adopted a change allowing a filibuster to end if there was a two-thirds majority vote to override it, a term known as cloture. In 1975, the Senate voted to reduce the two-thirds majority (currently 67 votes) needed for cloture to a three-fifths majority (60 votes). The 60 vote threshold is significant because it also changed the requirement for that number from those Senators present and voting to an absolute number of votes required, making it possible to filibuster without ever entering the Senate chamber. In recent years, the filibuster was abolished for judicial and other nominees, most famously allowing Cabinet nominees, federal judges, and Supreme Court nominees to be confirmed with a simple majority. The filibuster now is only used for legislation, although there are other arcane Senate rules that allow for passage of some budget bills with a simple majority. Notably, under the Senate rules, a piece of legislation can pass with a simple majority, it is the move for cloture that requires a 60 vote threshold. This allows for Senators to say that they would have been “for” a particular bill, but that procedurally, they were “against” moving forward without debate. In other words, many times the rule can be used to provide a given Senator or group of Senators political cover by not forcing them to vote up or down on a particular bill. It just never comes to the floor, leaving the Senator to be able to claim almost anything about what he or she might have done.

The filibuster was rarely used in the long history of the Senate, until the latter part of the twentieth century. Now, especially in a fiercely divided political atmosphere, it is being used with regularity. One person can stop a bill from coming to a vote if his or her party refuses to supply sufficient votes for cloture. This is extremely frustrating to the majority party, and is a major reason that little significant legislation gets passed.

There is no penalty for a single Senator to threaten a filibuster. They do not have to go to the floor anymore to actually hold the floor and talk — think Jimmy Stewart in the 1939 film “Mr. Smith Goes To Washington.” The last time a similar scene occurred was in September 2013 when Senator Ted Cruz (TX) held the floor for 21 hours 18 minutes in an attempt to shut down the government by opposing an appropriations bill. In August 1957 Senator Strom Thurmond (SC) talked for 24 hours and 18 minutes to filibuster the Civil Rights Act of 1957, the longest single-person filibuster in U.S. history. The bill passed. (Senator Thurmond was part of a group of Senators that used the filibuster to hold up The Civil Rights Act of 1964 for 60 days.) Originally, no other legislation or business could be conducted in the Senate during a filibuster. In 1970, as a reaction to Senator Thurmond’s and other southern Senators’ filibusters of civil rights legislation, the Senate adopted the “two track rule.” This allows for other bills and business to come to the floor while the filibuster is on. This allowed the Senate to become more efficient, but opened the door to ever increasing threats of a filibuster because there were no real consequences to saying that a particular Senator will filibuster. They can sit in their office and play solitaire if they so desire, while their threat holds up a bill that may not reach cloture.

Why the history lesson? I am no Parliamentarian and I am not trying to make anyone else one either, but it is helpful to try and understand where we are in our Republic today.

The filibuster is considered to be the one rule that makes the Senate what it is (or was) — the world’s greatest deliberative body. The idea is that the majority cannot cram through any whim of the moment piece of legislation. The minority party can block it. In theory, this is supposed to lead to negotiation and compromise, steering a steady course for the nation as the Senate provides a firm hand on the tiller to keep the wind and currents driving the People’s House from putting our country on the rocks. Unfortunately, in today’s environment, compromise and negotiation are dirty words to the extreme fringes of the political parties. It is easier to go on Fox News or other cable networks and make a name for oneself among the “base” as “fighting” to save Mr. Potato Head or whatever, than it is to actually do their jobs.

To be honest, why would President Biden or any Democrat in Congress want to compromise or negotiate with the other side when 147 of them in the House and Senate, nearly two-thirds, voted to overturn a free and fair election? And after an insurrection at that. Most of those 147 still will not acknowledge that President Biden won. The president held out an olive branch, but he rightly moved ahead with the COVID Relief Bill without a single Republican vote. Not one Republican in the House or Senate, despite the fact that every poll shows that 75% of the public — Democrats, Republicans and Independents — support it. Try for bipartisanship, but move on with the people’s business if all the opposition wants to do is obstruct.

I used to agree with the need for the filibuster. It was what made the Senate the Senate and not the whimsical House of Representatives. Now, I have changed my mind. The filibuster as currently interpreted must be changed. If no one can agree on how to change it, get rid of it. The counter-argument to keep it basically amounts to “pay backs are hell” — just wait until Republicans regain control of the Senate and watch them undo everything on a straight party line vote. After reading about the filibuster and listening to various pros and cons, I still think it should go. First, I have no doubt that if Senator Mitch McConnell (KY) regains his place as Majority Leader he will get rid of it in some form. Second, elections have consequences. Whichever party is in control will pass legislation to fulfill their agenda. The voters sent them there to do that. Right now the Senate accomplishes very little. If the controlling party passes legislation the voters do not like, they will vote them out of office. As it stands now, Senators have very little accountability. Modifying the filibuster or doing away with it will bring the spotlight on to those that would sabotage legislation and force them to defend their position.

Here is the point of this discussion. There are 253 bills proposed in 43 states, almost all by Republicans, to change voting laws. Most are meant to inhibit voters from going to the polls and are geared towards disenfranchising minorities. For example, in Georgia the legislature, among other things, is prohibiting Sunday voting. This is directly aimed at eliminating the successful efforts to mobilize black voters through “Souls to the Polls.” This is where many working class African-Americans go from Sunday church services to their polling places as a group. Many of them are people who may not be able to get off of work to vote on Election Day. Other provisions limit early voting, severely restricts voting by mail, and for some reason makes it illegal to provide food or water to people waiting in line to vote. There are other draconian measures in the legislation that is clearly aimed at decreasing turnout by making it as difficult as possible for people to vote, mostly aimed directly at minority populations in large cities. Jim Crow is alive and well.

The House passed H.R. 1 the “For The People Act” without a single Republican vote. The bill provides a uniform baseline within the U.S. for voting. It includes provisions for voter registration, early voting, voting by mail (it is worth noting that Oregon holds its elections entirely by mail and has done so for years without any problems), military and other overseas voters, election integrity, nonpartisan commissions for drawing up House districts, election security, the use of paper ballots as back up to electronic voting and a host of other common sense requirements.

Traditionally, the rules and methods for voting are left up to the states. H.R. 1 does not preclude states from adding additional features, as long as it does not restrict the baseline requirements proposed in the bill. In essence, it would make it easier for all Americans to vote. Voting can be done with full integrity with large numbers of participants, and we demonstrated that in the 2020 election. The ex-president’s own Administration called it the most free and fair election in our history with an historic turnout.

But the Big Lie continues to underpin Republican arguments that the voting process must be changed. As recently as this past Tuesday, the ex-president went on his favorite cable news channel to continue to complain that the election was rigged and that he actually won by “millions” of votes. Republican members of the House and Senate continue to do the same. Their entire premise for changing states’ voting laws is a lie.

The Senate version of H.R. 1 will not pass if the Republicans filibuster it, which they plan to do. This is where the rubber meets the road and could create the conditions to end the filibuster. Many people, me included, think that restricting the vote and disenfranchising Americans must be stopped and is alone sufficient cause to end the filibuster in order to save our Republic.

Try modifying the filibuster first. Perhaps going back to the time that a Senator or group of Senators actually have to hold the floor, talk, and be present for the entire filibuster. Perhaps by invoking a rule that three-fifths of the Senators present in the chamber can vote for cloture. I am sure that a good Parliamentarian can come up with a number of ways to preserve the filibuster but still make Senators put some sweat equity into the process and make them defend their position in public.

I would love for Republican Senators to have to publicly defend their disenfranchisement of African-Americans and other minorities. I would be truly interested in having them explain and defend restrictions on early voting, vote by mail, polls closed on Sunday and other restrictive measures. It would be fascinating to learn why a Senator thinks that it should be illegal to provide food and water to people waiting in line to vote.

Change the filibuster rule to make Senators accountable to the voters. Do not let them continue to hide behind arcane rules that hide their true values and intentions. If it can’t be changed, then get rid of it.