Update 473: Filibuster Rule [Nerd Alert]
To Reform Policy, First Reform Process
The upcoming elections will render a provisional verdict on the eternal question of the role of government. But that verdict could provide a mandate for government response to the various national crises and decisive federal action.
The current gridlock that produces judges but not laws and no economic relief for months reflects practices and rules of procedure in Congress that stand as structural impediments to legislation. The single most restrictive rule in terms of legislative responsiveness and productivity is the Senate’s famous filibuster rule, ripe for reform again since the last reform 45 years ago.
For a quick history, the impact, and the prospects for reform of the renown rule, see below.
Democrats need to net three new seats this November to get to 50 votes in the Senate. But no matter how well election night goes, Democrats will not reach the 60 votes needed to break a filibuster.
If Democrats take back the Senate, Republican Senators could stop the congressional Democrats and the Biden administration from achieving their legislative goals. The prospect of another four years of Republican intransigence is causing many Democratic Senators to consider reforming the filibuster or scrapping it altogether.
Below, we explore the history of the filibuster, where Senate Democrats currently stand, and avenues for reform.
The Fluid Filibuster Rule
The Senate filibuster is not part of the Constitution, but rather the product of an unintentional 19th-century rule change. After being ignored for thirty years, senators began occasionally abusing unlimited debate to scuttle legislation. In 1917, to limit filibuster abuse, the Senate introduced “cloture” through Rule 22 which allowed a two-thirds majority of Senators to vote to end debate. In 1975, the Senate lowered the cloture threshold to the current three-fifths majority or 60 votes. However, the use of the filibuster to prevent votes on legislation was limited until the early 2000s when they became a frequent occurrence.
Under the Obama Administration, the Republican Senate minority stalled presidential appointments by forcing cloture votes for dozens of Obama’s nominees to an unprecedented degree. To break the gridlock in 2013, Senate Majority Leader Reid invoked the “nuclear option,” lowering the cloture threshold to a simple majority vote for executive branch appointments and non-Supreme Court judicial nominees.
President Trump and the Senate Republican majority inherited the Reid-era cloture change, which has since facilitated the appointment of right-wing judicial nominees. The last change to cloture came in 2017 when Majority Leader McConnell used the nuclear option for Supreme Court nominees to usher in Neil Gorsuch. Today, the 60-vote cloture threshold remains for legislation that cannot be passed through the budget reconciliation process.
Although some perceive the filibuster as key to protecting the minority’s rights, this last bastion of the filibuster has done little for Senate Democrats. Instead, the current state of the filibuster allows McConnell to send bills to the graveyard and focus on judicial appointments. A report from the Center for American Progress found that Republicans have used the filibuster to stop Democratic legislation roughly twice as much as Democrats have used it to stop Republican bills. Democrats can be certain that if they take back the Senate, McConnell will continue his Grim Reaper act and abuse the filibuster once again to prevent the passage of meaningful legislation.
Whipping Reform: Few Holdouts Remain
The momentum for reforming filibuster procedure is building. For a growing number of Democrats, the choices are clear: keep the filibuster as is and watch the GOP block bill after bill or update procedures and move the country forward.
Progressive Sens. Merkley and Warren were early advocates for filibuster reform. But in recent months, staunch defenders of the filibuster, like Sens. Coons and Carper, have voiced support for reform. When questioned about ending the filibuster last month, Minority Leader Schumer said, “nothing is off the table.”
Democratic Senate candidates have also stated their willingness to consider reforms. This is particularly true of candidates running on reform-based platforms, such as Sara Gideon in Maine and Governor Steve Bullock in Montana. The issue gained national attention in July at Rep. John Lewis’s funeral where President Obama called the filibuster “a Jim Crow relic” and for its elimination, if necessary, to secure voting rights.
Reform(s) vs. Replace
If Democrats win a majority in the Senate, they will likely consider eliminating the filibuster or procedural reforms. Ideally, reforms would allow the use of the filibuster in extraordinary circumstances, where a minority is willing to make sacrifices to delay a bill, but prevent it from being the available barricade it is today.
- Lowering the Cloture Threshold: Under current Senate procedure, senators have two options for moving to a vote. The first is to seek ‘unanimous consent,’ to which any member can object. With no objection, the chamber votes. If a senator objects, then a cloture motion is filed. If the cloture motion receives 60 ‘yes’ votes, debate closes, and the Senate votes on the legislation.
- Reinstating the “Talking Filibuster”: Contrary to popular misconception, a modern filibuster does not require that a senator or group of senators hold the floor and speak until a motion for cloture is passed. Instead, the Senate simply does not act on a bill until either the majority finds 60 votes or gives up and moves on to other business.
This not only makes filibustering easy, but it also allows senators to covertly block legislation that they would not overtly oppose. Instead of ensuring that the minority can make itself seen and heard, the current filibuster forces the majority to have a supermajority to pass any bill. Returning to the talking filibuster would reinstate a unique feature of the Senate while upholding the rights of the minority.
- Extending Reconciliation Protections: Currently, bills that directly impact revenues, the federal debt limit, or mandatory or entitlement spending (except Social Security) are immune from filibusters if they qualify for “reconciliation.” By forbidding filibusters, the Senate can move budget bills more easily. Sen. Merkley has proposed extending reconciliation protections to bills on “fundamental constitutional” issues.
- Anonymous Holds: The Senate “hold” is an informal practice where Senators tell leadership their preference to temporarily pause floor consideration of specific measures. Usually, Senate leaders honor hold requests because not doing so could trigger filibusters that expend scarce floor time. A 2011 Senate resolution required the name of any senator placing a hold on an item to be made public, likely contributing to the increase in filibusters.
- Strengthening Debate Rules: The filibuster exists largely because of the relative dearth of rules governing Senate debate. Should Democrats regain control of the Senate, stronger rules on time allowed for debate of bills, individual amendments, and motions could decrease the obstructive capacity of the filibuster.
Give New Policies, Nominees a Fair Shot
The damage wrought by President Trump and his congressional enablers is unprecedented. Cleaning up after this administration must begin on day one of a Biden presidency. The Biden agenda will not get off the ground without procedural reforms that restore the filibuster to its appropriate role — a tool to be deployed rarely when a minority of senators feel that they must do all that they can to stop a bill. Changing filibuster procedure will not allow Democrats to pass whatever they want. But it will prevent a GOP Senate minority from blocking the necessary, broadly popular legislation that forms the basis of the 2020 Democratic platform.
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