In the halls of Capitol Hill, there has been a raging debate regarding one of the most vital documents in the function of our democracy: the Senate Rulebook. The rules of the Senate end up impacting all federal legislation passing Congress, and plays a major role when allocating annual budgets. For the most part, the two parties agree on the general procedures of the chamber. However, one rule in particular has caused controversy ever since its popularization in the 1960s: the filibuster.
The filibuster is especially relevant today due to the fact that it has been a major obstacle preventing the Biden Administration from implementing its agenda. The most recent case was the obstruction of voting rights legislation that would bring much-needed changes to the way the United States conducts its elections. The legislation was brought up for a vote on the Senate floor amid renewed pressure from the President, and was promptly blocked. Democrats needed 60 votes to clear the hurdle, but only managed to pick up 49 yays with Chuck Schumer voting no due to procedural reasons that would otherwise not be a factor. Support for the bill was fully split along party lines, and so another piece of legislation was shot down by the old rule. Although the filibuster has been in the rulebook for a long time now, the gridlock on the senate floor and consistent obstruction of much-needed legislation has brought its necessity into serious question. Now more than ever, there are loud calls to either significantly alter it, or scrap it entirely. But how valid are these cries for reform?
History
Firstly, it is important to know what the filibuster is and what it is not. The filibuster is not enshrined in the United States constitution. Nowhere in the document is the process of cloture on debate mentioned. Instead, the process of the filibuster was first introduced in 1806 entirely by accident. The Senate removed a rule requiring 51 votes to end debate because it was thought to be redundant. In theory, this allowed a senator to obstruct a bill by continuously talking. However, use of the filibuster was rare throughout the 19th century, with a few exceptions. Eventually, the number of filibusters began to rise in the latter stages of the 19th century and early stages of the 20th century. This culminated in a formal cloture process being introduced during the Wilson administration in 1917. At that time, American ships were being sunk by German submarines and Wilson sought to arm merchant ships to defend against German naval attacks. However, the bill to provide arms was continuously filibustered by a group of senators, and so the rules were changed so that debate on a bill could be ended via a 2/3rds majority. In the 1950s and 60s, civil rights became a very contentious issue in congress, and this led to socially conservative senators (mainly Southern Democrats) passionately opposing various civil rights bills that would have finally granted long-needed legal protection to African Americans and other minorities. This opposition led to some of the most infamous filibusters in the country’s history, including Strom Thurmond’s filibuster in 1957 where he continuously spoke in the senate chamber for 24 hours and 18 minutes. Despite the increase in frequency, the number of filibusters was still relatively low compared to what it is today. In the 1960s, the number of cloture motions put forward typically ranged from 4-7 every two years. In 1970 however, the Senate rulebook was reformed so that filibusters would not obstruct other items in the senate’s agenda. This made filibusters less destructive to the senate, but also made it easier to filibuster without facing consequences for holding up the chamber. This led to the number of cloture motions rising to 44 in 1973-74. As political polarization has led to slimmer congressional majorities and more party-line votes, the number of filibusters has continued to surge. In the last full congressional term, from 2019-2020, the senate had put forward a record high 328 cloture motions which absolutely dwarfs the rates in the 1970s. Today, any bill deemed “too liberal” or “too conservative” by the other party is doomed to fail because of this.
Possible Reforms
The degree to which the filibuster should be reformed is a question that will result in several different answers. The simplest reform being proposed is to change the rules so that the opposition will need to gather 41 senators in order to prevent cloture of debate. Currently, in order to end debate, 60 senators need to gather and actively vote “yes”. Switching the dynamics around will make it more difficult to obstruct a bill, and so we may see the number of filibusters fall. However, this reform would still mean that if a bill has enough opposition from the minority, it will struggle to get out of the chamber. Another proposal, supported by President Biden, is to reinstate a “talking filibuster”. This would require senators to actively debate a bill in order to prevent it from passing. This is very different from the current rules in which a filibuster can be done without a single word being spoken. This reform would make it difficult to obstruct a bill, but it would still be doable if the willpower from the minority is there.
Of course, there are two other options left on what can be done. One is to leave the rules as they are, and accept the congestion as ultimately good. The other is to abolish the filibuster entirely. Doing so will mean that congressional gridlock will be significantly reduced, with the cost of the minority’s opinion being less impactful. The fact that the minority will be able to be bypassed may rub some people the wrong way. However, when examining the reality of congressional dynamics, it becomes clear that this argument does not entirely hold up.
Majority Rule in the Senate?
The principle of opposing majority rule is a noble one. However, the status of legislation in the senate is ultimately a binary one. Either a bill passes, or it does not. This means that when the minority obstructs a bill in the Senate through the filibuster, their view is the one that triumphs. The filibuster tries to address majority rule by introducing minority rule instead. Because of the way legislation in a chamber works, we are forced to pick between the views of the elected majority and the views of the elected minority. In a democratic society, it makes little sense that the viewpoint of the minority will dominate simply because they are on the right side of the status quo. Further validating this is the fact that the House of Representatives currently does not have any form of the filibuster and regularly passes bills with a simple majority. To get a sense of how the Senate may look without the centuries-old rule, we may only need to look at the other side of the Capitol Building.
Source list:
https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm
Binder, S. A. (2020, January 17). The history of the filibuster. Brookings. Retrieved March 14, 2022, from https://www.brookings.edu/testimonies/the-history-of-the-filibuster/
Bomboy, S. (2021, April 5). Is Aaron Burr really the father of the filibuster? National Constitution Center. Retrieved March 28, 2022, from https://constitutioncenter.org/blog/is-aaron-burr-really-the-father-of-the-filibuster
Memmott, M. (2013, March 7). How did Strom Thurmond last through his 24-hour filibuster? NPR. Retrieved March 20, 2022, from https://www.npr.org/sections/thetwo-way/2013/03/07/173736882/how-did-strom-thurmond-last-through-his-24-hour-filibustern
Cloture motions. U.S. Senate: Cloture Motions. (n.d.). Retrieved March 23, 2022, from https://www.senate.gov/legislative/cloture/clotureCounts.htm
Hagen, L. (2022, January 18). Senate Democrats push for ‘talking filibuster’ to break … US News. Retrieved March 22, 2022, from https://www.usnews.com/news/politics/articles/2022-01-18/senate-democrats-push-for-talking-filibuster-to-break-impasse-on-voting-rights