Stasis in the Senate

Update 513 — Stasis in the Senate
Puts Filibuster Rule in the Spotlight

As President Biden and Congressional Democrats have been preparing and delivering the $1.9 trillion Corona relief bill, the GOP has been busy as well. Republican state legislatures and governors, unable to overturn the results of the 2020 elections, are focused on restricting voting in the next one. 

But GOP obstructions to voting extend to the United States Senate. Republicans are using the filibuster to restrict voting rights, invoking the Jim Crow era, and using the rule to prevent voting on the Senate floor. Below, we examine the history of the filibuster, reforms under discussion, and current support for these reforms among Senate Democrats. 

Good weekends all,

Dana

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With the stimulus bill signed into law, Democrats can turn their attention toward passing progressive reforms and policies. The House has already passed gun safety legislation, the Equality Act, a labor rights bill, and H.R. 1. But with the filibuster rule still in place, it’s unlikely that any of these bills will move past the Senate, despite enjoying majority support. For a growing number of Democrats in the Senate, the choice is clear: keep the filibuster as is and watch the GOP block bill after bill or update procedures and move the country forward. 

Filibuster, Past and Present

Although the Constitution gives the Senate authority to create its own rules, it makes no mention of the filibuster. In fact, the filibuster arose almost by accident. Upon Vice President Aaron Burr’s recommendation in 1806, the Senate removed the previous question motion from the rules. Over time, the filibuster (and the threat of the filibuster) defined the Senate as a legislative body distinctive for a single person or minority’s ability to stop a bill. Although the right of unlimited debate was somewhat curtailed by the introduction of the cloture motion in 1917, the filibuster remained a potent weapon for organized minorities in the Senate.

Proponents of the filibuster contend that it protects minority rights in the Senate and fosters compromise. But for much of the filibuster’s existence, it was used almost exclusively to block progressive legislation and prevent action against Jim Crow oppression. Segregationist Southern Democrats used the filibuster to kill every civil rights and anti-lynching bill in the Senate from Reconstruction until 1957. 

The use of the filibuster has ramped up significantly in the last two decades, coinciding with Mitch McConnell’s rise to Republican leadership. A report from the Center for American Progress found that Republicans use the filibuster to stop Democratic legislation roughly twice as much as Democrats use it to stop Republican bills. With high partisan polarization, the filibuster effectively forces most legislating in the Senate to require 60 votes — and very little gets done. 

Recorded Votes in the Senate since 1970

Source: 20/20 Vision; Brookings Institution

In 2013, 2017, and 2019, Majority Leaders Reid and McConnell used the so-called “nuclear option” to eliminate the filibuster for nominations. In doing so, they set a precedent for creating additional exceptions to the filibuster. Yet the legislative filibuster remains in place, posing the most significant obstacle to advancing progressive policy under a Democratic-controlled Congress.

Options for Reforming and Limiting the Filibuster

The House recently passed several progressive bills, but the reality of the filibuster will soon sink in as these bills are brought to a halt. Finding ten Republican senators on any of these bills is highly unlikely — if not impossible. Unless Democrats either eliminate the filibuster or take other steps to ensure that bills with majority support can pass, these bills stand little chance of being enacted. 

Essential Components of Reform

• Lowering the Threshold: In 1975, the Senate reduced the votes required for cloture from two-thirds (67) to three-fifths (60). Lowering the figure again to a number just above 50 could foster compromise if only a few Republican votes were needed for cloture. If the threshold were lowered to a simple majority, however, that would effectively repeal the filibuster. One variation on this was proposed by former Sen. Tom Harkin: start with a 60-vote threshold, but lower it the longer that debate goes on. 
  
  Another variation on threshold reduction is creating exceptions to the filibuster rule, carve-outs for certain categories of legislation. For example, voting rights legislation could be exempted so that significant parts of H.R. 1 could pass by a simple majority. Must-pass or emergency legislation could also enjoy such privilege. Despite the filibuster’s prominence, the Senate has created exceptions in recent decades for a variety of legislation, meaning such a rule change has historical precedent. 

• Debate Rules: The filibuster’s power is derived from the lack of rules in the Senate governing debate. New rules could limit amendments, motions, or the time allowed for debate, diminishing the filibuster’s potency.

Other Options Under Discussion

• Talking Filibuster: By requiring senators to actually hold the floor and talk in order to filibuster, minority-led obstructionism would be made much more difficult by imposing a cost of time and energy and forcing their opposition into public view. But a minority that passionately opposes a bill could be willing to hold the floor no matter the cost and thereby paralyze the Senate. In 1964, Southern Democrats managed to hold up the Senate for 60 days filibustering the Civil Rights Act. 

• Present-and-voting Standard: Another option for reform would require a three-fifths vote for cloture only of those senators present in the chamber. For example, if only 90 senators were present, just 54 votes would be required for cloture. Like the talking filibuster, this would impose a much higher cost on the minority but would not make a filibuster unachievable.

• Byrd Rule Reform: The parliamentarian’s ruling that the $15 minimum wage could not be included in the stimulus package underscored the limitations of the reconciliation process. Reforming the Byrd Rule to be less restrictive, such as by allowing items that are “merely incidental” to the budget to be included in reconciliation, could lead to more legislative priorities being able to bypass the filibuster.

Senate Democrats and the Filibuster 

The momentum for reforming filibuster procedure is building. Just last weekend, Sen. Manchin joined a growing number of Democrats expressing openness to reforming the filibuster rule — although he remains opposed to full elimination. Progressive Sens. Merkley and Warren were early advocates for filibuster reform but have been joined in recent months by many defenders of the filibuster, including Sen. Coons and Senate Majority Leader Schumer. 

As it stands, the caucus can be split into four groups: those supportive of reform (or eliminating the filibuster entirely), those open to changes if Republicans obstruct popular legislation, those who have defended the filibuster in its present form, and those who have not substantially commented on the issue yet. According to our analysis and the Washington Post, 19 members of the Democratic Caucus (including Independents who caucus with the party) appear supportive of reform, 19 are open to changes, and 7 oppose changes, leaving only 5 Democratic Senators who have not yet commented on the issue. 

Democratic Caucus on Filibuster Reform

Source: 20/20 Vision; The Washington Post

Opportunities for Reform

Reforming the filibuster will likely require invoking some form of “nuclear option” — the process by which a majority of senators changes Senate precedent by overruling a parliamentary ruling, as occurred famously in the Byrd Rule (providing for reconciliation) in 1986, as well as in 2013 and 2017 (reducing from 60 to 50 the number of votes needed to approve judicial nominations). 

Sub-nuclear options that reduce barriers to legislation have recent precedent and retain a key (but extra-constitutional) feature distinguishing the Senate from the House. Democratic Senators skeptical of reform may find that carving out exceptions to the rule will prove needed to enact must-pass legislation (the debt limit)–to say nothing of H.R. 1 or H.R. 4 to restore the Voting Rights Act. Some seek to make a minimum wage hike the casus belli. Majority Leader Schumer may have a background checks gun control bill in mind as the nuclear tripwire. 

What is at stake is giving freedom to U.S. senators to do their jobs. Workplace rules currently deprive them of the right to vote, even on bills that 59 members support. But the people they serve suffer more. Failure to deliver on campaign promises or address needed relief priorities under current circumstances would risk punishment at the polls. In the coming weeks, as House bills become stalled by the filibuster, the choice between maintaining an antiquated tradition and producing meaningful policy change will become clearer.