Should The U.S. Senate Scrap Their Filibuster Rules?

The United States Senate in session in their chamber in the U.S. Capitol building.

The United States Senate in session in their chamber in the U.S. Capitol building.
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Every now and then,  President Donald Trump urges the U.S. Senate to get rid of their ancient filibuster rules. I suspect a great many people, myself included, are terribly ambivalent about the issue. There are truly excellent reasons for the Senate both to retain and to junk their filibuster rules. What would be best for the nation? With the Senate balanced on the edge of a knife between the Republicans and the Democrats, a great deal rides on how the issue will be resolved.

How the Filibuster Arose As a Senate Institution

The Senate’s filibuster rules  are not mandated by the U.S. Constitution. Instead they are a part of the Senate’s rules for procedure, and can be changed by a simple majority vote by the Senate. Nevertheless, in an 1892 Supreme Court ruling (United States v. Ballin), it was decided that Senate rules changes can themselves be filibustered, requiring two-thirds of the senators present to invoke cloture and end debate. More on this fine mess shortly.

During the first U.S. Congress in 1789, there was a procedure to close debate on pending proposals called the previous question, also known as “calling for the question”, “close debate”, or “calling for  a vote”. A call for a vote had to be voted upon immediately and would pass with a simple majority. However, in 1806 the filibuster was accidentally created as a Senate procedure when the Senate’s presiding officer, Vice President Aaron Burr, proposed the previous-motion procedure be eliminated as being redundant and seldom used. This rule modification was passed by the Senate, leaving no alternative method to end debates, making filibusters theoretically possible.

Nevertheless, filibusters remained completely theoretical until 1837 with the very first filibuster. At the time, both the Senate and the House of Representatives could have filibusters to keep bills from a vote, but subsequent House Rules limited filibusters there. Only the Senate currently permits the tactic.

In 1917 at the entry of the United States into World War I, President Woodrow Wilson called for a rules change to stop anti-war senators from filibustering bills supporting the U.S. war effort. By a 76-3 roll call vote the Senate adopted a rule allowing cloture (i.e. stopping) of debate with a two-thirds vote. Upon the invocation of cloture, the bill had to be immediately voted upon, with passage requiring only a simple majority. In 1975 the two-thirds vote requirement for cloture was reduced to three-fifths, or 60 votes out of 100 senators.

In 1974 a new procedure called reconciliation was created to get budgetary bills past the hurdle of filibusters. At the beginning of the annual budget process, each house of congress passes a budget resolution that sets overall funding levels for the various parts of the government. This resolution is passed by simple majority, is not signed by the President, and does not have the force of law. It simply gives Congress self-imposed limits on their funding authorizations. Any subsequent bill that reconciles funding amounts in appropriations bills with the amounts found in the budget resolution — called a “reconciliation bill” — is not subject to filibuster.

In 2013, the filibuster was further weakened as a tactic when the Democratic Senate adopted the so-called “nuclear option” to forbid filibusters on the Senate’s “advice and consent” for executive branch nominees and for all federal judiciary nominees with the exception of those to the Supreme Court. On April 6, 2017 the Republican Senate included confirmation votes on Supreme Court nominees as exempt from filibuster.

Since the 1960s, filibusters have become increasingly important in blocking proposed legislation, as can be seen in the graph below.

Cloture voting in the United States Senate since 1917.

Cloture voting in the United States Senate since 1917.
Wikimedia Commons / Randy Schutt

As the electorate and the two major parties have become increasingly polarized and hostile, all-out opposition of one party for the other party’s legislative proposals has become the rule rather than the exception. The fall-off in clotures and cloture attempts during the Obama era probably has more to do with each side recognizing the hopelessness of the legislative situation, and not even seriously attempting to get much passed. It is no wonder the electorate has become so frustrated and angry!

Why Should We Abandon the Filibuster?

Nevertheless,  this is a conflict that is purely of the voters’ making. They are the ones who are the ultimate choosers of the President and of their senators and representatives. They have at least some influence over those appointed to the federal judiciary through their choices for President and the Senate. Yet the balance is so precarious in the Senate (52 seats belong to Republicans, 47 to Democrats, and Jeff Sessions’ old seat from Alabama is vacant) that unless a proposal is a reconciliation bill, 60 votes would be necessary to get past the inevitable filibuster.

The Senate balance is so fine because the voters themselves can not decide how government should deal with our problems. The voters themselves are very evenly divided between the progressive and neoliberal ideologies, and this division has nothing to do with partisan competition and partisan one-upmanship. Instead it is the result of deeply ingrained and for the most part honestly held beliefs. We can not get beyond this Mexican standoff without a very large fraction of the electorate changing their ideological beliefs. How then can we break the deadlock?

One possible way is for the Republican Party to deep-six the filibuster for any legislative proposal before the Senate. Needing to amass only a simple majority to pass any bill, the GOP would have a much better chance of enacting their policies. This would not be a panacea, as the Obamacare “repeal and replace” debacle teaches us. Nevertheless, a requirement for only a simple majority to pass any Senate bill would give Republicans a much better chance to enact the policies for which they were elected.

But what about the inevitable time when Democrats can wrest control of the Senate away from the GOP? Then the progressives would have a much better chance of instituting their policies, which Republicans would clearly abhor. There is a reason why the Senate filibuster has lasted for almost the entire history of the United States. The filibuster made much more likely that any legislation passing both houses of Congress would be something the vast majority of Americans could support. Should this thought stop Republicans in their tracks from even considering abolishing the filibuster?

The proverbial 800 pound gorilla in the room is the profound ideological gridlock of the nation. Somehow American voters — both neoliberal and progressive — must be forced to reconsider their deepest ideological beliefs. The ideal way would be for American citizens to study the evidence of data and historical experience to discover which ideological positions are most probably true and which most probably false. Yet ordinary Americans have shown a great aversion to prolonged and difficult study of just about anything. Instead of spending their time time in reading and contemplation over subjects that are not usually entertaining, most would  prefer to spend their time going to a good movie, going to a sporting event or concert, reading an entertaining novel, drinking at a bar, or doing something else to entertain themselves. Not that these are necessarily bad uses of time. I have done every single one of them myself. However,  at least some amount of time must be spent as a civic duty to discover what claims about government are true and which false.

Alas, our fellow citizens seem not willing to do the requisite study! Yet if they will not learn from study, experience would absolutely force them to learn. This, I believe, is the strongest argument for doing away with the filibuster. If the Republicans would get rid of it now, any of their agenda they could institute would help teach citizens the effects of those neoliberal policies as opposed to past progressive ones. If the Republicans were to lose future control of the Congress and the Presidency, the lack of a filibuster might indeed allow progressives to pass their bills in the Senate. However, the American citizenry would then be forced to live under them and experience first-hand whether they were beneficial or not.  As Benjamin Franklin once taught us, “Experience keeps a dear school, but fools will learn in no other.” Of course a different, Romanian proverb instructs us “Only the foolish learn from experience — the wise learn from the experience of others.”

What do you think? Should the Republicans do away with the filibuster for all bills in the Senate, or not?


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