Political Blue Gene

March 9, 2021

Whither the Filibuster

Since the early days of our country’s existence, the filibuster has existed in one form or another.  For most of that time, it was rarely used.  Starting in 1917, Senate rules required a two-thirds vote of those senators voting to end debate (known as invoking cloture).  After some changes along the way, in 1975 the rules were changed to require 60 votes of all senators to invoke cloture and end debate.  In 2013 and 2017, some nominations were excluded from the threat of filibuster.

In 1970, another change was made that has had a more significant effect on legislation than simply changing the number of votes needed for cloture.  Until 1970, the Senate could only take up one item at a time.  For anyone who has seen Frank Capra’s film, Mr. Smith Goes to Washington, the climactic scene has Jimmy Stewart preventing the Senate from taking up any business as long as he kept talking.  With 1970’s new, two-track system, the Senate could continue to debate and take action on more than one item at a time.  This eliminated the need for senators to actually hold the floor and keep talking for a filibuster to be effective.

This brings us to today and the current debate among Democrats about whether or not to end the filibuster completely or at least expand the kinds of votes that are not subject to the filibuster.  (We must remember that these are Senate rules and are not subject to House votes or Presidential vetoes.)

I have always been opposed to ending the filibuster on the theory that whenever the other party gains control of both houses of Congress and the presidency, they can easily undo the legislation your side was so proud to pass.  But times have changed.

The Republican Party has morphed from a party with ideas (whether good or bad is open to interpretation), into a party of ‘no”:

• “No” to fighting racism, systemic or otherwise
• “No” to improving health care
• “No” to fighting climate change and protecting our environment
• “No” to tackling immigration issues in a fair and just manner
• “No” to believing in science
• “No” to telling the truth
• In short, “No” to most legislation that might improve most people’s lives

At the same time, Republicans in the Congress have remained united with one goal during the Obama years and now as the Biden years begin:  prevent the Democrats from passing any legislation and giving the country the opportunity to make progress in so many areas.  In other words, if the Democrats propose something, Republicans oppose it, even those Republicans who may have supported the same or a similar proposal when there was a Republican president.

We have become a federal government that now operates similar to the parliamentary form of government seen in most democracies.  In those countries, because their citizens vote for a party and not necessarily an individual, they automatically get a leader (usually called the Prime Minister) who is of the same party as the majority of their legislative body, or parliament.  Thus, the party in power can enact its program as it controls both the executive and legislative branches.  In the U.S., little gets done if the parties in control of the presidency and either house of Congress differ.  And in the current environment we end up with the Republicans’ 21^st Century M.O. – oppose everything the Democratic president wants to do so they (the Republicans) can say what a terrible president he is since nothing gets done.  Ergo, to get legislation passed, the legislative and executive branches must be from the same party. 

Due to the budget reconciliation process, we have just seen with Biden’s American Rescue Plan how the country can prosper when a simple majority is in effect.  He tried to work with the Republicans, but even the proposal from the small group of Republicans who met with him could not be taken seriously, coming in at less than one-third of his plan and omitting aid in many areas.

At this point, it seems unlikely that all Senate Democrats will support a complete elimination of the filibuster.  However, as has been done in the past, new rules could be fashioned for certain types of legislation, such as protecting voting rights, without completely eliminating the filibuster.  Implementing the simple majority vote will give Democrats the advantage inherent in the parliamentary system.  It may be that only this action will allow the Democrats to move the country forward while protecting their narrow Congressional majorities in both the House and Senate in 2022 and 2024, and also retaining the presidency in 2024.