Fix, But Don't Break the Filibuster

The Filibuster is Not "Deeply Rooted in Racism"

The US Senate’s “filibuster” rules have been front and center since last year’s contentious presidential election. Actually, it has been contentious pretty much non-stop for about 64 years, and maybe longer.

When a great many Americans hear the word “filibuster,” many of a certain age think of Jimmy Stewart’s legendary performance as the fictional US Senator Jefferson Smith in the 1939 Frank Capra classic, “Mr. Smith Goes to Washington.” Capra’s movie, whose climactic filibuster scene was inspired by a real Senate 10-hour filibuster in 1935, courtesy of the legendary Huey P. Long, populist Democrat from Louisiana. Long never liked President Franklin Roosevelt’s depression-era National Industrial Recovery Act and occupied the floor well into the night in a vainglorious and futile effort to defeat the legislation. Long’s legendary filibuster was entertaining, to say the least.

News for Sen. Elizabeth Warren (D-MA): Neither that filibuster nor a many before it nor since were “deeply rooted in racism.”

A little history. The word “filibuster” has its origins in the Dutch word for piracy, and its real origins go back to the Roman Senate. Many experts dismiss the belief that it was rooted in the Constitution, but it was, perhaps indirectly and certainly not explicitly. After all, the US Senate was structured in part to cool the passions of the US House of Representatives. Senators, after all, have longer 6-year terms and appointments by state legislatures (until the 17th Amendment, ratified in 1913 provided for direct elections). The filibuster emerged in the Senate, in small part, to slow things down. The Senate has never lived down that reputation. I’ve heard many refer to the Senate as “a place where bills go to die.” True enough.

Both chambers began their work in Philadelphia’s Congress Hall (next door to Independence Hall, and open to the public) in 1789 with pretty much the same set of rules. But in 1806, being prosecuted for the death-by-duel of Alexander Hamilton, Vice President Aaron Burr “advised” the Senate to abolish from its rules the motion to call “the previous question.” It’s a motion, requiring a simple majority, to end debate on a matter and vote. Burr suggested the Senate get rid of it. And they did.

Around 1841, efforts began to curb the filibuster, but were met with. . . filibusters. It wasn’t until 1917, under pressure from President Woodrow Wilson - citing national security - that the Senate finally agreed to end debate on a two-thirds vote of the Senate (67 votes with everyone present and voting). It seems that Wisconsin US Sen. Bob LaFollette, a Republican, filibustered legislation to allow the arming of US merchant ships to combat German submarines when pro-war sentiments during WWI were running high.

It is true that many of the post-Civil War filibusters were led by Southern Democratic Senators to stop early civil rights legislation during the “Jim Crow” era, including one particularly odious filibuster by the infamous Sen. Theodore Bilbo (D-MS) to stop anti-lynching legislation.

In 1975, a heavily Democratic Senate reduced the number of votes needed to end filibusters to a three-fifths vote - 60 votes with everyone present and voting. That standard still holds today, but only for legislation. The filibuster was eliminated by something called the “nuclear option” by Senate Majority Leader Harry Reid for executive nominations (other than Supreme Court nominations) in 2013. Four years later, Majority Leader Mitch McConnell followed suit with Supreme Court nominations when Democrats filibustered President Trump’s nomination of Neil Gorsuch.

What is the nuclear option? Under Senate Rule 22, it takes a supermajority of two-thirds (67 votes) to amend Senate rules. But back in 2005, Senate parliamentary expert Martin Gold is often credited with rediscovering a way - threatened in past years - to surreptitiously amend the rules by a vote to “overrule” a ruling of the chair. That motion only requires a simple majority of 51 votes to succeed.

The nuclear option works like this. A Senator will ask the chair whether it takes a supermajority to end debate on legislation. The chair will correctly cite the existing Senate rule (also Rule 22) that, yes, it takes 60 votes to end debate. The Senator will then ask to overrule the ruling of the chair, which just takes a simple majority of 51 votes. If the motion passes, then the rule evaporates, and ending debate will require nothing more than a simple majority of 51 votes going forward. It is a clever parliamentary scheme around the Senate’s explicit rule to require 67 votes to change the rules.

In a 50-50 Senate, with a Democratic Vice President breaking ties, you can see the great temptation of Senate Democrats to end the filibuster to move on aggressive, partisan legislation from the House, whether election “reform” (HR 1), immigration reform, and much more.

It was just 4 years ago that 61 US Senators, including 33 Democrats, signed a letter defending the filibuster and vowing to protect it. I guess those 33 Democrats were not all that concerned then over the filibuster being “deeply rooted in racism.” Then-Senate Majority Leader McConnell was under great pressure from President Trump and many conservatives to ditch the filibuster to advance their agenda. McConnell resisted, a fact that he consistently reminds Democrats today.

It is true that the filibuster had evolved from non-stop speeches to little more than a threat to vote against a “motion to proceed” or invoke cloture, ending debate. Some Senators are resurrecting talk of “reforming” the filibusters to require a “talking” filibuster, including Sen. Joe Manchin (D-WV), one of those Democrats who promise to protect the filibuster. Uh-huh.

Here’s the obvious question that no one is asking Manchin or his Democratic colleagues. If you’re planning to “reform” the filibuster, how are you going to do that? With a required 67 vote rules change or using the “nuclear option?” If it is the latter, it is clearly an elimination of the filibuster in yet another example of naked hypocrisy, no matter what kind of lipstick you put on it. That’s a nice as I can put it.

Here’s the thing. Republicans would be happy to talk to Democrats or anyone about reforming the filibuster and a bunch of other rules and procedures suggested by US Rep. Tom McClintock (R-CA), which has frustrated majorities of both parties for most of the past 35 years. But jamming down any rules change through the nuclear option may finally put the final nail in the coffin of a working Senate - at least one that functions the way our framers designed, and many Americans expect.

Everyone knows that we are more divided as a nation than ever before. The Senate’s rules requiring some bipartisan cooperation - and protecting the rights of the “minority” - are essential to its organizational purpose to cool passions, slow the process, and ensure broad public support for the legislation. And terminating the Senate’s filibuster rule for legislation will turn the Senate into nothing more than a copy of the House. Worse, it will further divide the country and send us on wild, partisan swings every few years, with each party reversing each other. Do we really want to go there?

Democrats should read or listen carefully to Mitch McConnell when he said eliminating the filibuster and jamming down agendas can worth both ways; majorities are never permanent, as recent history clearly demonstrates.

“And then there’s the small matter that majorities are actually never permanent. The last time a Democrat leader was trying to start a nuclear exchange, I remember offering a warning. I said my colleagues would regret it a lot sooner than they thought. And just a few years and a few Supreme Court vacancies later, many of our Democratic colleagues said publicly that they did. Touching the hot stove again would yield the same result, but even more dramatic, as soon as Republicans wound up back in the saddle, we wouldn’t just erase every liberal change that hurt the country. We’d strengthen America with all kinds of conservative policies with zero input from the other side.

“How about this? Nationwide right to work for working Americans. Defunding Planned Parenthood and sanctuary cities on day one. A whole new era of domestic energy production. Sweeping new protections for conscience and the right to life of the unborn. Concealed carry reciprocity in all 50 states and the District of Columbia. Massive hardening of security on our Southern border. We saw during the amendment votes just days ago that some common sense for Republican positions actually enjoy more support right now than some of the Democratic committee chairs priorities. And this is with them in the majority.

”So the pendulum, Mr. President would swing both ways and it would swing hard.” 

No doubt that Senate Democrats are under enormous political pressure to eliminate the filibuster and speed a very radical, very partisan, and hard-left agenda. Senate Majority Leader Charles Schumer (D-NY) faces a potential primary challenge in 2022 from the dynamic socialist, Rep. Alexandria Ocasio Cortez. Campaign money and energy come from the Democratic Party’s aggressive, demanding progressive base. Incumbent Members of Congress no longer seem to fear general elections - they fear primaries from their own flanks (both parties, by the way).

The filibuster does call for reforms, and both my friend Mark Strand of the Congressional Institute and Rep. McClintock, among others, have suggested some interesting and attractive reforms. But using the nuclear option to terminate the supermajority vote requirement is not the answer.

Senator McConnell and some 28 then GOP Senators wisely rejected the push the eliminate the filibuster for legislative in 2017. Democrats should remember why - most of them agreed at the time. We will find out soon enough if they have or will succumb to their worst fears and partisan impulses.