It’s a product of the U.S. Senate, the notion of how a minority party can block legislation from ever making it to a floor vote. “The concept of making marathon speeches to block legislation [a traditional definition of ‘filibuster’] has been around since ancient Rome. But U.S. lawmakers have made this tactic notorious—and created a new form of ‘stealth’ filibusters… Appropriately, its name comes from a Dutch word for ‘pirate’—because the filibuster is, in essence, a hijacking of debate in the U.S. Senate. It’s also one of the most controversial traditions in American politics.
“To win approval in the Senate, most legislation requires only a simple majority, or 51 votes. But to bring an end to the debate over a piece of legislation, the threshold is higher: the votes of three-fifths of the members present, or 60 senators, are required to cut off debate. If there aren’t enough votes for cloture, a single senator who refuses to yield the floor during a debate, or delays it with unnecessary parliamentary motions, can prevent the end of debate—and thus, the passage or defeat of the legislation.
“Defenders of the filibuster argue that it protects the rights of the minority party and encourages consensus. Opponents complain that it subverts majority rule and creates gridlock. Both sides in the argument claim to have history—and the U.S. Constitution—on their side.” Amy McKeever writing for the February 2nd NationalGeographic.com. Indeed, the Constitution imbues the Senate with the power to make its own rules, but there is an inherent constitutional limit that has yet to be tested. Some Senate votes are not subject to that 60-person rule. Confirmation of presidential appointments. Reconciling budgetary and appropriation bills that, by law, must originate in the House. But most approvals are subject to a filibuster, unless a modern view of “cloture” under Senate Rule 22 is invoked by that same 60 vote margin. That would limit remaining debate to 30 additional hours before a floor vote would be forced.
Without the cloture alternative, filibusters could be notoriously long: “Perhaps the most well known use of cloture came when the Senate invoked the rule after a 57-day filibuster against the Civil Rights Act of 1964. Southern lawmakers stalled debate over the measure, which included a ban on lynching, until the Senate mustered enough votes for cloture.” ThoughtCo.com (5/8/19). The longest single filibuster came in 1957 when Dixiecrat (he became a Republican in 1964) Strom Thurman took the Senate microphone (pictured above): “Senator Strom Thurmond holds the record for the longest filibuster in American history. In 1957, Thurmond held the senate floor for over a day [a continuous 24 hours and 18 minutes to be precise] speaking against the Civil Rights Act of 1957… During his filibuster, Thurmond recited the Declaration of Independence, the Bill of Rights, President George Washington’s farewell address and a handful of other historical documents.” IAgreetoSee.com (5/22/15)
A vote to allow a Senate rule change requires a two-thirds majority, but there is possible alternative if the President of the Senate (Vice President Kamala Harris) plus 50 Senators challenge the constitutionality of this super-majority requirement. Courts might refuse to intervene, but this notion of simple majority rule to end debate is called “the nuclear option.” Works well for the party that can cause this to happen… for a while… but it becomes a double-edged sword if they later fall to becoming a minority party. How did this happen?
“No one ever planned the filibuster… As scholars have shown, the men who wrote the Constitution intended the Senate to work by majority rule, as the House does. Over the decades, however, the Senate’s tradition of allowing lengthy speeches evolved into one in which debate could continue without end, blocking legislation… In 1917, the Senate adopted a rule requiring a two-thirds vote to end debate. Over the next half-century, filibusters, enforced with marathon speeches, became the prime tool for Southern senators to block civil rights bills.
“In 1975, the Senate adopted a rule that allowed 60 senators to end debate. Reformers expected that change would weaken the filibuster’s power. But an unexpected thing happened — the weaker filibuster became more common… Senators began threatening extended debate on so much legislation that by the early 2000s, the 60-vote threshold had become a de facto requirement for nearly everything of consequence.
“That led to several moves to further curtail filibusters. In 2013, a Democratic-majority Senate changed the rules to allow most nominations to pass with a simple majority. In 2017, a Republican-controlled Senate expanded that exemption to include Supreme Court nominations. Even earlier, in 1980, Congress agreed that certain spending and tax measures could pass the Senate by a simple majority vote under a special process known as budget reconciliation.
“The resulting messy set of rules and exemptions governs the Senate today, giving extensive power to the parliamentarian, a theoretically neutral staff member who sorts through the chamber’s precedents and, among other things, determines what fits within the filibuster exemptions.” David Lauter writing for the Los Angeles Times, February 28th. And while there is no filibuster or cloture for reconciliation bills, just a straight up vote, Senate Republicans delayed that vote on Biden’s recovery bill by requiring that all 628 pages be read aloud!
It seems antidemocratic that a minority can literally stop majority passage of most legislation in the Senate, but that’s exactly where we are. It gets even nastier when you realize that unpopulated rural and mostly red states truly control the Senate. Because there are only two Senators from each state, regardless of population, about 30% of the U.S. voters control 70% of the Senate.
As reinforced in the roiling “stop the steal” speeches at this year mass GOP gathering in Orlando at the end of February (the Conservative Political Action Conference), Senate Republicans are in no mode to support the House/Senate/Presidency Democrat majority agenda. David Lauter explains Senate gridlock realities: “A measure to cut child poverty nearly in half, another to raise the minimum wage to $15 an hour, a third to end job discrimination against LGBTQ workers — Democrats have a far-reaching legislative agenda, but the threat of Senate filibusters has already constrained their choices.
“The first sacrifice to the Senate rules came last week as the chamber’s parliamentarian ruled that President Biden’s proposed minimum wage increase did not fit into the narrow category of spending and tax measures that can evade filibusters. The ruling came the same day that the House passed the Equality Act, a measure to prohibit discrimination against LGBTQ Americans, which has previously been blocked in the Senate by Republican filibusters.
“Still to come are at least two more measures expected to pass the House — a voting rights bill and a measure to reform police practices — which core Democratic constituencies ardently want, but which face grim chances in the Senate because of the power the minority has under the rules to block the majority… One way for Democrats to counter the threat of GOP filibusters against their agenda would be for Senate Majority Leader Charles E. Schumer to bring up sensitive bills, daring Republicans to talk them to death…
“However, avoiding the filibuster issue won’t work forever… Republicans have shown little reluctance to use the rules to the fullest. Whether the test comes on the Equality Act, voting rights, policing or some other priority, at some point in this Congress, Democrats will face a stark choice: Limit filibusters or accept defeat.” Gridlock. Further, the notion of containing and neutralizing Joe Biden, by whatever means possible, is now official GOP policy. In the 2022 mid-terms, you can bet that Republicans running for Congress will underscore how little the Biden administration will have accomplished, even though they directly caused that gridlock. Democrats are equally likely to point out all the people-friendly legislation Republicans opposed. It could really get ugly in 2022 and even uglier in the presidential election in 2024.
Chipping away where they can, like pushing Democrats (through WVa Democrat Joe Manchin) to reduce eligibility for individual aid and even reducing the weekly unemployment amount, “Senate Republicans prepared Friday [5/5] to vote lockstep against the relief bill, taking the calculated political risk that Americans will sour on the big-dollar spending for vaccination distribution, unemployment benefits, money for the states and other outlays as unnecessary, once they learn all the details. Reviving a page from their 2009 takedown of Barack Obama’s costly recovery from the financial crisis, they expect their opposition will pay political rewards, much like the earlier effort contributed to the House Republicans' rise to power.” Associated Press, March 6th.
At least for now, on a pure partisan vote, the $1.9 trillion stimulus recovery bill slipped past that filibuster/cloture rule… through the House-Senate budget reconciliation exception. But there is so much more that needs to be done… that probably won’t get past the great GOP Senate blockade. The American political system is unraveling. The fascinating part of this journey, evidenced by the self-congratulatory nature of the recent GOP CPAC gathering, is the assumption by an already minority party (25% of registered voters call themselves Republican) that these resist-all-things-Democrat, deny-climate-change and prioritize-low-taxes-for-the-rich-and-small-deficits-during-a-recovery policies are what the majority of Americans want. Not if you believe in most of the recent polling.
I’m Peter Dekom, and increasingly the rest of the world sees the United States as what The Economist calls a “flawed democracy,” one that does not accurately and fairly represent the will of the majority of its constituents.
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