In truth, I hadn’t planned a fourth segment. But when I turned to Friday’s New York Times editorial page, this headline called to me: “Save Democracy: Kill the Filibuster.”
So even though the filibuster has been discussed in the first three parts of this series, how could I ignore this piece? It sorta felt this was the right place to rest the series—at least for now. (And a four-part series has a kind of nice symmetry to me.)
I don’t think I’ve sufficiently stressed previously that there’s nothing sacrosanct about the filibuster. It doesn’t appear in the Constitution. The founders sought to balance majority rule and minority rights.
They did so in a number of ways—including the establishment of a House of Representatives whose numbers were based on population and a Senate whose numbers were set at two per state—regardless of the number of individuals in a state.
But they never mentioned a supermajority. And that’s what the filibuster demands.
The Times editorial points out that the Constitution’s framers included no supermajority requirement because they saw that this approach had essentially brought governing under the Articles of Confederation to a halt.
Indeed, Alexander Hamilton wrote (Federalist 22), “What at first sight may seem a remedy is, in reality, a poison.” He feared such a supermajority requirement would be used to “embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”
The filibuster has been used, abused, and changed a number of times over the years. There have been varying recent suggestions about ways to curtail it that might meet the objections of Senators Manchin and Sinema, who are the Democratic holdouts.
Though I believe the elimination of this archaic rule is optimal, it’s worth exploring some compromises.
Manchin has even said he’d consider inflicting some “pain” into the process to make it less desirable. He suggested the “talking filibuster”: actually requiring a Senator to stand up and continue speaking to hold off the vote for as long as possible.
The most famous talking filibuster was conducted by South Carolina Senator Strom Thurmond in opposition to the Civil Rights Act of 1957. (Filibusters have often been used to oppose civil rights legislation.)
Thurmond spoke on the Senate floor for 24 hours and 18 minutes. If he and his purpose weren’t so heinous, I’d be tempted to express grudging respect for his perseverance.
Which of the likely Republican opponents can you imagine displaying such stamina? Rand Paul? Josh Hawley? Ron Johnson? Lindsey Graham? Certainly Mitch McConnell wouldn’t dabble with such a messy effort.
Oh, there’s Ted Cruz, who seems inordinately delighted by the sound of his own voice. Cruz actually did stage a 21-hour filibuster in 2013 in opposition to funding Obamacare. (Not-so-fun fact: part of his verbal barrage was reading from Dr. Seuss’s Green Eggs and Ham—nearly 8 years before his party latched on to Dr. Seuss as their “Cancel Culture” icon.)
One recent idea for a filibuster modification was suggested by former Senator Al Franken and political scientist Norman Ornstein, who co-authored an opinion piece in the Star Tribune.
When Franken was in the Senate, he’d noticed the extent to which his Republican colleagues were abusing the filibuster to stop President Obama’s nominees from being confirmed.
The problem with the filibuster had worsened in 1975—ironically, through a bipartisan agreement. Formerly, 2/3 of the Senators had to be present and voting to end debate and move to a vote.
But in 1975, the Senate changed that percentage to 3/5 of the Senate, or 60 votes. With the change, only a few members of the minority had to be there, putting the onus on the majority.
Franken wondered why the Democratic majority had to come up with 60 votes to end the filibuster. “Why don’t they [the Republicans] have to come up with 41 votes to sustain a filibuster?” He posed that question to Ornstein.
With such a change, Franken and Ornstein agreed, the burden would be where it belonged: if the minority felt strongly enough about a particular issue, they should surely agree with this adaptation of the filibuster rule.
Here are some additional ways to reform the filibuster, provided by Vox in a lengthy article that goes into greater detail on each of these proposals and provides additional background on this topic:
“Make fewer bills subject to the filibuster: The Senate can create carveouts and exempt certain matters from the filibuster altogether, as it does with bills subject to the reconciliation process.
[I note that this is what Rep. Jim Clyburn is suggesting should be done with any legislation involving voting rights, rightfully acknowledging their central role in our democracy.]
“Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.
“Make it easier to break a filibuster: The Senate could reduce the number of votes necessary to invoke cloture. This could be done as an across-the-board reform, like the 1975 change to the filibuster rule that reduced the cloture threshold from 67 to 60. Or it could be done by creating a carveout for certain matters, such as the 2013 and 2017 reforms that allowed presidential nominees to be confirmed by a simple majority vote.
“Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.”
I consider all the above last resort options if there’s simply no way to bring along Manchin and Sinema. But I hope they’re not necessary. The growing list of prominent individuals who have said the filibuster per se must go includes former President Obama.
Fittingly, Obama expressed his opposition while delivering the eulogy for Congressman John Lewis, and it couldn’t be more relevant to consider his words as the House and Senate consider the two voting rights acts.
The New York Times reported then:
“The former president seized the moment to cast the filibuster as a vestige of a grim period in the United States when Southern lawmakers used it to impede voting rights and other advances for African-Americans.
“Once we pass the John Lewis Voting Rights Act, we should keep marching. And if all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do.”
The Times editorial that prompted me to write this post also begins with voting rights legislation:
“It is hard to imagine a more fitting job for Congress than for members to join together to pass a broadly popular law that makes democracy safer, stronger and more accessible to all Americans.
“Last week, the House of Representatives passed H.R.1. The bill, a similar version of which the House passed in 2019, is a comprehensive and desperately needed set of reforms that would strengthen voting rights and election security, ban partisan gerrymandering, reduce big money in politics and establish ethics codes for Supreme Court justices, the president and other executive branch officials.
The editorial then warns what will happen federally if H.R.1 (now S.1 in the Senate) doesn’t pass: the further undemocratic entrenchment of the Republican minority, as in states like Wisconsin and North Carolina. Despite the fact that Republicans win fewer votes than Democrats, their gerrymandered control leads to maps that give them big legislative majorities.
And the editorial points to the Roberts Supreme Court’s decisions that have had the effect of encouraging voting restrictions, as previously noted in this series, as reasons the legislative passage is so important.
“Any intellectual justification for the filibuster has been gutted by the fact that it doesn’t apply anymore to many important issues before the Senate.
“The point of H.R.1 is not to help Democrats. It is to rebuild and reinforce the crumbling foundations of American self-government and abolish voter restrictions erected for explicitly partisan gain — a federal law that would protect all voters. If the choice is between saving the filibuster and saving democracy, it should be an easy call.”
With that, the Times Editorial Board rests its case. And so do I.