The Senate filibuster is one of the most unfortunate accidents in American history.
In 1805, after the duel in which he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the panel's rules by eliminating what has been termed a "Motion for Prior Question" in the Senate .
As Sarah Binder, a congressional expert at the Brookings Institution and professor at George Washington University, told the Senate Committee in 2010, Burr's intention was to create a "cleaner set of rules" that would not be too extensive with duplicate procedures. And he thought the previous question request was a redundant rule that could be eliminated.
Unfortunately for the nation, the previous proposal was not in the least redundant. This motion turned out to be the only way to force the Senate to turn away from a particular issue. When the Senate took Burr up on his call, he allowed the Senators to lock the Senate in endless, pointless debates – which stopped progress even if a majority in the Senate tried to pass a vote.
The filibuster was born.
Since then, the rules for filibusters have changed several times – and with increasing frequency.
In 1917, President Woodrow Wilson successfully challenged the Senate to create a process known as "Cloture," which would allow a two-thirds majority in the Senate to break a filibuster and put a matter before the Senate for a final vote. The number of votes required to end a filibuster, whether by law or a confirmatory vote, was reduced to three-fifths of the Senate (typically 60 votes) in 1975.
In the 1970s, Congress created a process known as "budget reconciliation" that allowed many tax and expense accounts to become law by simple majority, bypassing the filibuster. In 1996, Congress passed the Congressional Review Act, which allows Congress to repeal recent federal agency regulations without dealing with the filibuster.
And filibuster reforms took place in today's Senate enacted quite often. In 2011, a narrow Senate majority voted to deprive the minority of the power to force votes on changes to the law. In 2013 the Senate passed a temporary measure restricting the minority's ability to postpone confirmatory votes once the Senate agreed to end the debate on a particular candidate, and a version of that rule became permanent in 2019 (although nothing really permanent is because a future The Senate could change this rule at any time. The Senate voted for non-Supreme Court candidates to be confirmed by simple majority in 2013, and it voted for Supreme Court judges to be simple majority in 2017 beeing confirmed.
Indeed, this brief account of the filibuster's history dramatically shows how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Restrictions in the Senate, Molly Reynolds of the Brookings Institution writes that “a careful review of historical records 161” identified legal provisions that prevent “future law from being passed Filibuster on the Senate floor. "That includes legislation speeding up the vote on trade negotiations, speeding up the vote on military base closings, and allowing Congress to bypass the filibuster for certain regulatory and budgetary issues.
Amanda Northrop / Vox
In other words, filibuster reforms are perfectly normal.
Congress took its first steps to contain the filibuster more than a century ago, and the modern Senate has often set limits on the filibuster. If the current Senate made additional changes to the rules for the filibuster, it would be very much in line with recent Senate practice.
Democratic senators like Joe Manchin (WV) and Kyrsten Sinema (AZ) who speak out against eliminating the filibuster don't need to eliminate it to build a more functional Senate.
Before I go into a number of different ways, the filibuster can be modified without abolishing it. However, it is helpful to understand some of the procedural details behind the filibuster.
How filibusters work
Exceptions to the filibuster rule such as For the reconciliation process, which can rarely be applied and which has its own completely complex rules, there are usually two ways of bringing a matter to the Senate for a vote.
The first is unanimous consent, a procedure often used for uncontroversial matters or for matters where both parties have already negotiated an agreement. If every single Senator approves a vote, the vote can be scheduled immediately.
However, if only one Senator objects, the Senate may not be able to hold a final vote on a matter unless directed to Cloture.
That brings us to the second way, to have a vote in the Senate. Cloture is a long process. To invoke Cloture, the majority must first propose a petition, signed by at least 16 Senators, to end the debate on a matter. Then the senators have to wait. According to the Congressional Research Service, a cloture petition “must wait until the second calendar day the Senate meets. For example, if the motion is filed on Monday, it will run through Wednesday, provided the Senate meets daily. "
After this waiting period has elapsed, the Senate will vote on whether to end the debate and put an issue to the vote. It takes 60 votes to end the debate on most legislation and 51 votes to end the debate on a candidate. Although nominees can be confirmed by a simple majority, a confirmation vote by a filibuster can still be delayed.
Most Senate Republicans, for example, recently used the filibuster to delay the confirmation of Secretary of Homeland Security Alejandro Mayorkas. Although the Senate voted 55 to 42 in favor of ending the debate on Mayorka's nomination on Jan. 28, the final vote to confirm it did not take place until five days later.
Without unanimous consent to an immediate vote on a matter, a relatively small minority in the Senate can delay a final vote for several hours or possibly even several days. Even after the Senate invokes a specific matter, the minority can force the Senate to debate up to 30 hours after the cloture, although the number of hours varies widely depending on the nature of the matter.
When Barack Obama took office in 2009, he had to appoint approximately 1,000 Senate-approved cabinet jobs, sub-cabinet positions, ambassadors, judges, federal attorneys, and U.S. marshals. At the time, Senate rules allowed the Republican minority to impose a 30-hour post-cloture debate on each of these candidates.
The result was that if the Senate worked 24 hours a day, seven days a week, doing nothing but Obama's, the Republicans would have forced the Senate to do nothing but approve the final candidate for more than three years To confirm candidates. Indeed, a 2012 law that allows the president to appoint officials to approximately 170 senior positions without going through the Senate confirmation process is best understood in response to widespread filibusters of President Obama's candidates.
To avoid further such systematic delays, a 2019 change in Senate rules reduced the scope of the post-cloture debate for federal judges and non-cabinet executive officials (still cabinet secretaries, district judges, and Supreme Court candidates) to two hours out of the full 30 Hours of debate received). While the filibuster can still be used to delay confirmatory votes, it is a far less effective obstruction tool than it used to be.
Four ways to reform the filibuster
In any event, as this brief discussion of the filibuster process shows, there are four ways Senators can weaken the filibuster without eliminating it altogether.
Make fewer bills dependent on the filibuster: The Senate can create carveouts and exempt certain matters altogether from the filibuster, as is the case with bills that are subject to the reconciliation process.
Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Currently, unanimous approval is required to hold a vote without going through the time-consuming cloture process. However, the rules could be changed to allow an instant vote unless a larger block of senators – maybe two, five, or ten – opposed such a vote instead of just one.
Make It Easier to Break a Filibuster: The Senate could reduce the number of votes required to invoke Cloture. This could be done as a major reform, such as the 1975 amendment to the filibuster rule that lowered the cloture threshold from 67 to 60. Or it could be outsourced for certain matters like 2013 and 2017 reforms that allowed presidential candidates to be confirmed by simple majority.
Reduce or eliminate the time it takes to enter Cloture: The Senate could shorten the time it takes to invoke Cloture and take a final vote. This could be achieved by allowing a faster vote on a cloture petition, by reducing or eliminating the time spent on debate after closing, or both.
The Senate can effectively change its rules whenever it wishes by a simple majority. It uses the same process that Congress used in 2013 and 2017 to allow presidential candidates to be confirmed with just 51 votes. (When the Senate uses this process, colorfully dubbed the "nuclear option," it is technically simply reinterpreting an existing rule, but the effect is the same as changing the rule.) So if the narrow democratic majority in the Senate wants to weaken the filibuster, he has the votes.
With this in mind, let's take each of the general reform categories listed above and set out some specific filibuster reforms this Democratic Senate could pass.
Make fewer bills dependent on the filibuster
As mentioned above, the reconciliation process allows Congress to pass at least some tax and spending laws without having to worry about a filibuster. Another act, known as the Congressional Review Act, allows Congress to override a recently created regulation by a federal agency and do so through an expedited process that bypasses the filibuster.
So it can and has been done – the Senate could create additional exemptions for the filibuster, either through laws passed by both Houses and signed by the President, or by creating such exemptions by simple majority in the Senate.
Allowing certain types of laws to be enacted without a filibuster
Since a simple majority is all it takes to effectively change the Senate's rules, Senators could create every possible spin-off for the filibuster. For example, you could exempt all laws that are endorsed by a certain number of senators. You could exempt laws that touch on certain issues. You could even exempt laws whose titles begin with the letter "J" if a majority so wishes.
One particularly prominent possibility here is: Democrats in both Houses largely agree on laws that strengthen the suffrage law, oblige states to sign congressional districts with bipartisan commissions, and otherwise make it easier for citizens to exercise their voting rights.
But such legislation has no chance of being passed as long as a Republican Senate minority can filibust it. However, a simple Senate majority could exempt any bill that expands voting rights from the filibuster, a possibility that Senator Jeff Merkley (D-OR) floated off the Atlantic in an interview with Ronald Brownstein. This would preserve the filibuster for all other laws – something Manchin and Sinema seem to appreciate – and allow Democrats to pass fundamental democratic reforms at a time when democracy has been attacked from the right.
Exempt state laws and other laws that are not the subject of meaningful debate
Senate Democrats voted for most of the candidates to be confirmed by a simple majority in 2013, largely due to frustration with Republicans' efforts to keep certain positions open forever – or at least until a Republican moved into the White House.
However, it is logical to treat confirmatory votes differently than votes on legislation. The supposed purpose of a filibuster is to give senators the opportunity to continue debating a legislative proposal until they can agree on whether to adopt that proposal with or without amendments. Unlimited debate means unlimited time to propose changes to a bill. Candidates cannot be changed, however – it's not as if Republicans who protested Mayorka's endorsement introduced an amendment to change Mayorka's views on immigration policy.
Hence, it makes sense that the filibuster should be applied with less force on immutable matters like a confirmation vote.
A similar logic could be applied to state votes. Although there are some controversial issues whenever Congress votes to admit a new state – such as what the state should be called or what its exact boundaries should be – the basic question before the Senate is similar to a confirmatory vote. Washington, DC either becomes a state or it doesn't. There really isn't much room for change in a statehood bill.
Because of this, the Senate could decide to exclude state votes from the filibuster, as well as other matters where the debate is unlikely to change the shape of a legislative proposal in any significant way.
A Congressional Review Act for the Supreme Court
Congress has extensively reviewed the Supreme Court. A 2012 study by Rick Hasen, law professor at the University of California at Irvine, found that between 1975 and 1990, Congress passed "an average of twelve overrides of Supreme Court cases in every two-year term of Congress." (Hasen defines the term "override" to include acts of Congress that "suspend, reverse, or modify a legal interpretative holding of the Supreme Court".)
However, Congress seldom takes part in such a review of the Court's decisions. Hasen's study found that between 2001 and 2012, the number of overwrites fell to just 2.8 per two-year term.
The Supreme Court now has a Republican majority of 6 to 3 with aggressive plans to move American law to the right, despite the American people voting for a Democratic government in the last election cycle. Senate Republicans can filibust almost any bill that seeks to override a court ruling that misinterprets a federal law.
Vanderbilt law professor Ganesh Sitaraman is writing in the Atlantic proposing a solution to this imbalance of power – a type of Congressional review bill for laws that override a Supreme Court decision.
Following Sitaraman's suggestion, "If the Court were to make a judgment on the interpretation of a statute or regulation, Congress would have 30 days to vote on a review process." If Congress voted to start such a process, a special committee would draft law that would override the court's decision. Neither the vote to open the review process nor the vote to pass the legislation of the Special Committee would be subject to a filibuster.
Reduce the power of rogue senators
It takes 60 votes to get most bills through the Senate, but it takes 100 votes to get a lot done quickly. Since unanimous approval is usually the only way to circumvent the lengthy cloture process, a single senator can unilaterally delay most of the votes.
When the Senate's calendar is full, such delays can postpone certain votes indefinitely. If the Senate Majority Leader tries to pass several major bills, approve funds for the coming year, and approve a bevy of candidates at the same time, the Senate may not have 30 hours to approve a Biden Circuit Court Candidate. (Although after the cloture is invoked, the Senate's rules state that "no Senator is entitled to speak in more than an hour on the action, motion, or other matter pending before the Senate" – in other words, the ability of the minority to delay a matter is more limited when only a few Senators attend.)
The need to get all 100 Senators on board to act quickly also creates a perverse incentive for many Senators. Senators like Ted Cruz (R-TX) and Josh Hawley (R-MO) can present themselves as lone warriors ready to stand up for conservative causes that matter to people who watch Fox News or Newsmax when everyone else Senator unanimously approves request. And once a single senator objects to unanimous consent, many of the senator's fellow guerrillas are likely to join the crusade against a bill or nomination so as not to be attacked by the partisan media.
A bipartisan group of senators is reportedly discussing ways to resolve this issue. According to Hill & # 39; s Jordain Carney, these senators are interested in reforms that would result in "clearing bills held by one or two senators".
It is not yet clear whether any specific reform will emerge from these talks, but it would probably not be difficult to draft a new rule that would nullify Cruz or Hawley's power to unilaterally take hostages. For example, instead of requiring unanimous approval for a quick final vote on a matter, the rules could be changed to allow for a quick vote unless a small group of senators – maybe five or ten – oppose such a vote.
This reform would not only accelerate matters that have overwhelming (but not unanimous) support in the Senate. This would also change the incentives for senators who want to inflate their reputation as lone wolves, as it would no longer be possible for a single senator to unilaterally delay progress.
Make it Easier to Break a Filibuster
The 60-vote threshold is not set in stone. This doesn't even apply to nominations or voting invoices. And the threshold has recently been lowered from 67 to 60 votes. There is no reason why this threshold cannot be lowered again unless it is completely eliminated. Also, there is no reason the filibuster process cannot be changed to add extra burden to a block of Senators who want to keep a filibuster running.
Reduce the threshold
The simplest filibuster reform would be to lower the cloture threshold from 60 to a lower number – just like the Senate lowered the threshold for candidates to 51 votes in 2013 and 2017. The Senate could lower the threshold for all laws. Or it could cut it down on bills that touch on issues like voting rights or statehood for the reasons explained above.
Alternatively, the filibuster threshold could be decreased over time. As early as 1995, for example, then Sen. Tom Harkin (D-IA) presented a proposal that would have gradually reduced the number of votes required to break a filibuster. Harkin's proposal would initially require 60 votes, but that number would drop to 57 after several days of debate and to 54 and again to 51 after a total of eight days.
For example, senators who vigorously protested a bill could maintain that bill for up to eight days – potentially delaying other matters on a crowded Senate calendar. But without the majority support, they couldn't quite kill the bill.
Do you need "talking" filibusters
The filibuster is often misrepresented in popular culture. The 1939 film Mr. Smith Goes to Washington culminates in a scene in which the title character speaks for 25 hours – a so-called "talking filibuster" – to block the passage of a corrupt bill. The Parks and Recreation show has recreated this scene more recently, albeit on a much smaller scale.
In reality, however, senators don't have to hold the Senate to maintain a filibuster. They just have to refuse unanimous consent and then they can do whatever they want with their time.
In 2012, Senator Merkley proposed that the Senators actually be required to speak continuously in the Senate to keep a filibuster going. According to his proposal, “Senators who deem additional debate necessary would have to ensure that at least one senator is on site and presents his arguments.” If at any time no senator was present who would like to maintain a filibuster, “the chairman of the Senates decide that the time for extended debate is over. The majority leader would then schedule a simple majority vote on the bill. "
Reverse the assumption in favor of filibusters
Under current Senate rules, the burden of breaking a filibuster rests with the majority. Senators who support this legislation must find at least 60 votes (out of a total of 100 senators) to end the filibuster.
This burden can affect the majority, among other things the entire Senate is at the mercy of random events. The majority may have 60 votes to break a filibuster but may not because a single member of that super majority with 60 votes is stuck at home in a blizzard. In 2009, Democrats briefly held 60 Senate seats, but their legislative power was restricted because Senator Ted Kennedy (D-MA) spent his final months at home in Massachusetts while he died of a brain tumor.
This assumption in favor of a filibuster could be reversed. Instead of requiring 60 positive votes to break a filibuster, the Senate could require the minority to produce 41 votes to maintain a filibuster. Thus, the obstructionists would be charged with ensuring that enough senators are present to block the legislation.
Reduce or eliminate the time it takes to enter Cloture
Even if a majority in the Senate wishes to maintain a majority requirement to pass laws, there is no reason why the minority should be able to delay matters that are already majority support. For example, nothing useful was achieved by forcing 30 hours of post-cloture debate on the Mayorkas nomination after it was already clear that Mayorkas had enough votes to be confirmed.
Eliminate all post-cloture debates on nominees
As explained above, there is really no reason why the debate on a candidate should continue after a majority in the Senate has already voted to invoke that candidate. The nomination cannot be changed, and Senators who have already voted for Cloture are unlikely to change their minds as some of their peers are making speeches in front of the candidate.
In other words, a simple reform would be to remove the post-cloture debate on all confirmatory votes (or, alternatively, remove the cloture process for nominations altogether and allow the majority leader to retrieve each nomination for an immediate confirmatory vote). Such a reform would prevent the minority from delaying confirmatory votes just to consume time that could be devoted to other matters.
Streamline the process of calling Cloture
The Senate could also reduce or eliminate the time between filing a Cloture motion and the actual Senate vote on the Cloture appeal. This reform would also reduce the ability of the minority to postpone bills and confirmatory votes, which are already supported by a majority.
Support for the filibuster within the Senate's Democratic majority is waning. Indeed, some senators who have been strong proponents of filibuster recently have increasingly criticized the minority party's power to block laws.
But with the Senate split between 50 and 50 and Vice President Kamala Harris holding the decisive vote, the Democrats need every single one of their members to support a measure to eradicate the filibuster. And at least two of those members, Manchin and Sinema, seem determined to keep the filibuster in place.
But even if the Democrats lack the votes to eliminate the filibuster altogether, they may be able to reform Senate rules. After all, the Senate voted to weaken the filibuster in 2011, 2012, 2013, 2017 and 2019. Filibuster reforms are not uncommon. If a majority really values doing something in the face of the filibuster, they have other options for getting rid of the tactic.