The Filibuster: An Accidental and Archaic Rule

Sen. Jon Ossoff, D-Ga., speaks to reporters outside the Senate chamber just after being sworn-in by Vice President Kamala Harris, at the Capitol in Washington, Wednesday, Jan. 20, 2021.

One of the most misunderstood aspects of the federal government is the arcane Senate rule known as the filibuster. Both Democrats and Republicans have argued against the filibuster, according to whether it is useful to them or not. Considering how little the contemporary version of the U.S. Senate accomplishes, that may be reason enough to kill the filibuster — a tool used by the minority party to keep the Senate in a state of near-perpetual obstruction. There’s another reason. Despite an enormous amount of work to be done now at the start of a new Congress, the Senate can’t accomplish tasks as basic as picking committee chairs because Minority Leader Mitch McConnell is using the threat of a filibuster to hold up the rules organizing the new Senate, which is split 50-50, with Vice President Kamala Harris’ tiebreaking vote giving Democrats a razor-thin majority. Why? Because McConnell wants a guarantee that Democrats won’t bend the rules to eliminate the filibuster. 

 

At this point in this post, I am going to give all of you a choice. You can watch a 20-minute video of John Oliver explaining in an irreverent but often humorous way the history and structure of the filibuster, or you can read my more detailed and analysis of the filibuster. If you choose the video, then you can skip to the section below the dividing line.

For a little history, the filibuster, contrary to popular belief, is not in the Constitution and the founding fathers never even mentioned it at the Constitutional Convention or in The Federalist Papers, which argued against supermajority required votes in Federalist No. 58 written by James Madison and Federalist No. 22 by Alexander Hamilton. While the Constitution does not mandate it, the framers clearly envisioned that simple majority voting would be used to conduct business. It took seventeen years for the simple majority rule to be changed. In 1789, the first U.S. Senate adopted rules allowing senators to move forward to vote on a bill by a simple majority vote. However, Vice President Aaron Burr argued that voting on whether or not to vote on a bill was redundant, and the Senate had only exercised the procedure once in the preceding four years. He believed the rule should be eliminated, which was done in 1806 after he left office. The Senate agreed and modified its rules; however, filibusters became theoretically possible because it created no means for ending debate. Just an aside, Burr, who accidentally created the filibuster, was later tried multiple times for treason for attempting to establish an independent country in the Southwestern United States and parts of Mexico. This was after he killed Alexander Hamilton in a duel, and Burr ended up fleeing to Europe to get away from the charges of treason. Treason, by the way, is very difficult to prove by the standards set by the Constitution.

 

Though the option of the filibuster had been created, it remained only theoretical until the 1830s. The first Senate filibuster occurred in 1837. In 1841, a defining moment came at the hands of Alabama senator and future vice president William Rufus King (who I wrote about several weeks ago as being the possible lover of James Buchanan). During debate on a bill to charter a new national bank, Senator Henry Clay tried to end the debate through a majority vote. King threatened a filibuster, saying that Clay "may make his arrangements at his boarding house for the winter." Other senators sided with King, and Clay backed down. At the time, both the Senate and the House of Representatives allowed filibusters as a way to prevent a vote from taking place. Subsequent revisions to House rules limited filibuster privileges in that chamber, but the Senate continued to allow the tactic. 

 

Eight decades passed before a rule was created to end a filibuster. In 1917, during World War I, a rule allowing cloture (a motion to end debate through a vote) was adopted by the Senate on a 76–3 roll call vote at the urging of President Woodrow Wilson, after a group of 12 anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. From 1917 to 1949, the requirement for cloture was two-thirds of senators voting. During the 1930s, Senator Huey Long of Louisiana used the filibuster to promote his populist policies and ushered in the politics of strange speeches that mocked the dignity of the Senate. Long recited Shakespeare and read out recipes for "pot-likkers" during his filibusters, which occupied 15 hours of debate. Senator Ted Cruz more recently read Green Eggs and Ham by Dr. Suess, even though the need to continually speak is no longer necessary. The threat of filibuster suffices these days. In 1949, the Senate made invoking cloture more difficult by requiring two-thirds of the entire Senate membership had to vote in favor of a cloture motion. However, that lasted a mere ten years. In 1959, then-Majority Leader and future president Lyndon Johnson anticipated a flurry of civil rights legislation and restored the cloture threshold to two-thirds of those voting to keep Southern Democrats from hijacking the Senate. As presiding officer, Vice President Richard Nixon supported the move and stated his opinion that the Senate "has a constitutional right at the beginning of each new Congress to determine rules it desires to follow," which is the reason the Senate is currently debating the rules governing the Democratic majority in the Senate.

 

After a series of filibusters in the 1960s over civil rights legislation, the Senate put a "two-track system" into place in 1970. Before this system was introduced, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the majority leader—with unanimous consent or the agreement of the minority leader—to have more than one main motion pending on the floor as unfinished business. Under the two-track system, the Senate can have two or more pieces of legislation or nominations pending on the floor simultaneously by designating specific periods during the day when each one will be considered. (This might be a possible way for the Senate to move ahead with the current impeachment trial that is expected to come forward sometime today.) This change's side effect was that by no longer bringing Senate business to a complete halt, filibusters on particular motions became politically easier for the minority to sustain, leading to the number of filibusters increasing rapidly. In 1975, the Senate revised its cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, with only a few exceptions to the rule.

 

Whoever was the minority party at the time began to use the filibuster as a way to hold up judicial appointments. In 2005, a group of Republican senators proposed having the presiding officer, Vice President Dick Cheney, rule that a filibuster on judicial nominees was unconstitutional, as it was inconsistent with the President's power to name judges with the advice and consent of a simple majority of senators. On November 21, 2013, Senate Democrats used the so-called "nuclear option," voting 52–48 — with all Republicans and three Democrats opposed — to eliminate the filibuster's use on executive branch nominees and judicial nominees, except to the Supreme Court. In 2015, Republicans took control of the Senate and kept the 2013 rules in place. On April 6, 2017, Senate Republicans eliminated the sole remaining exception to the 2013 change by invoking the "nuclear option" for Supreme Court nominees. This was done to allow a simple majority to confirm Neil Gorsuch to the Supreme Court. The vote to change the rules was 52 to 48 along party lines.

 

The supermajority rule has made it very difficult, often impossible, for Congress to pass any but the most non-controversial legislation in recent decades. During times of unified party control, majorities have attempted (with varying levels of success) to enact their major policy priorities through the budget reconciliation process, resulting in legislation constrained by budget rules. Meanwhile, public approval for Congress as an institution has fallen to its lowest levels ever, with large segments of the public seeing the institution as ineffective, which brings us to the current situation. Senate Majority Leader Chuck Schumer cannot organize the Senate under his majority rule because Minority Leader Mitch McConnell insists that the Democrats commit to leaving the filibuster intact. The Democrats have no plans at this time to kill the filibuster altogether. Quite frankly, they do not have the votes, since Democratic Senator Joe Manchin openly opposes the idea and others are cautious; however, they want to keep the threat of killing the filibuster to prevent McConnell and the Republicans from abusing it and stopping all Democratic legislation.

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The stakes here are interesting because the issues are deeper than just the filibuster. While the new Senate is split evenly, the 50 Democrats in the Senate represent over 41.5 million more people than the 50 Republicans represent. The filibuster means that no legislation can pass Congress without the support of 10 Republicans. What that means is that the fight over the filibuster is a fight not just about the ability of the Democrats to get laws passed, but about whether McConnell and the Republicans, who represent a minority of the American people, can kill legislation endorsed by lawmakers who represent quite a large majority. We are in an uncomfortable period in our history in which the mechanics of our democracy are functionally anti-democratic. The fight over the filibuster might seem dull, but it’s a pretty significant struggle as our lawmakers try to make the rules of our system fit our changing nation.

 

One of the biggest problems with the filibuster is that it’s held as a hallowed tradition of the Senate when it was not originally part of the rules of the Senate. Furthermore, it allows for just forty-one people out of the 328.2 million Americans to stop legislation from even being considered. The other major problem is that the Senate, contrary to popular belief, is filled with racists, homophobes, misogynists, and/or stupid people. The stupidity may be the worst of them all because they cause the other three. I will not give the obvious example of the election of a football coach who doesn’t even know the three branches of the government or who the Allies fought in World War II because no one is claiming Tommy Tuberville is a genius. Instead, I want to bring to your attention the stupidity of a man many in the Senate often claim to be a genius, Ted Cruz. The Senator tweeted the following statement on Tuesday:

By rejoining the Paris Climate Agreement, President Biden indicates he’s more interested in the views of the citizens of Paris than in the jobs of the citizens of Pittsburgh. This agreement will do little to affect the climate and will harm the livelihoods of Americans.

— Senator Ted Cruz (@SenTedCruz) January 20, 2021

Many senators, including Democrats and Republicans, have stated that Cruz is a very intelligent man. Yet, he is too stupid to understand that the Paris Climate Accord is named as such because it was signed in Paris, not because it represents the views of Parisians. While he probably does realize this, he is more likely playing to his constituents' stupidity and the supporters of the previous administration. This kind of stupidity is the reason Chuck Schumer and the Democrats must end the filibuster. If they don’t, they might as well just go back to letting Mitch McConnell be Majority Leader and allow the Senate to continue to prevent any legislation from moving on through the Senate.

In other news: President Biden is expected to sign an executive order today that will lift the Pentagon’s ban on transgender people serving in the military. The controversial ban was announced by the previous president in 2017 and reversed the Obama administration’s policy to allow open service by transgender people.