Image courtesy of CBS by GFYCAT,
Whether you learned about it in AP Gov. or on an episode of Schoolhouse Rock, the legislative process is explained fairly simply. A bill is proposed, debated, and edited in the House of Representatives.
If it is passed by majority vote it is then sent on to the Senate, where it undergoes another round of amendments and debate before being voted on again. If it is approved in the Senate, again by a majority, it is sent to the desk of the President either to be signed into law or vetoed. Pretty simple, right?
In reality, however, it is not that easy. Even if supported by a majority of Senators, a bill can be “killed” through a range of methods including obscure senate rules or even a presidential “pocket” veto. One such controversial method is the filibuster, an informal term for any attempt to delay or block voting on a bill. Famous uses of the filibuster include Ted Cruz’s reading of Green Eggs and Ham, Strom Thurmond’s 24-hour filibuster, and Councilwoman Leslie Knope’s filibuster on roller skates in the political comedy Parks and Recreation. As the debate over whether to eliminate or amend the filibuster rule commands the fight for Senate control, it’s important to explain what exactly the filibuster is, how it can be changed, and the pros and cons of keeping it.
What is the filibuster?
Filibustering in general doesn’t refer to any specific act, but “includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote.” It’s a procedural issue including any general action or use of loopholes to block votes on legislation. Filibustering has been used historically as a tactic to prevent many kinds of proposals from civil rights legislation to confirmation of judicial nominees from reaching a vote.
The filibuster rule in question refers to the cloture rule, also known as Senate Rule 22. It states that when a bill is being debated on the floor, a group of Senators can move to end the debate and force a vote on the bill. In order for debate to be ended, Rule 22 states that “if that question shall be decided in the affirmative by three-fifths of the Senators” then debate can be ended and the bill brought to a vote. This means that if more than two-fifths of senators (41 or more) vote against ending debate (or even threaten to), they can block a vote from ever happening.
For example, if the current Democrat majority of 50 senators plus the Vice President are in favor of passing a bill but 50 GOP senators vote against ending debate, then the bill is dead on the floor even though it was never voted down. Using this rule of filibustering, a minority party can kill legislation even though they are out of power.
The filibuster rule does not mean that 60 votes are required to pass a bill. It means that 60 votes are required to end debate and move on to voting on a bill, which still requires a simple majority to pass.
If the filibuster rule requires 60 votes to put legislation to a vote, then how could the most recent COVID bill be passed?
The filibuster does not apply to every kind of legislation. One way to get around the filibuster is to use the budget reconciliation process. The $1.9 Trillion relief bill, passed in March, was approved using this process, which attaches legislative priorities to a filibuster-proof budget bill. Once the congressional budget resolution is agreed upon it can be passed between committees to make additional recommendations for the bill. These recommendations can then be added on to the larger bill. They are not subject to the same rules as other bills and cannot be filibustered like normal legislation and require a simple majority to be added.
The reconciliation process can’t be used for everything, however. The Byrd Rule, named for former West Virginia Senator Robert Byrd, sets forth certain tests for what can or cannot be used in the reconciliation process. For example, one of the Byrd Rule’s provisions is that no provisions can be added which “do not produce a change in outlays or revenues.” In other words, they must have a direct effect on the budget. The COVID bill passed by senate Democrats was filibuster-proof because it used this process and only changed government spending or revenues according to the Byrd Rule. The Tax Cuts and Jobs Act of 2017 also used this process. The Senate parliamentarian, though, has considerable influence over the interpretation of these statutes. The proposal to raise the federal minimum wage, for example, was ruled by the Senate parliamentarian to be excluded from the COVID bill under the guidelines of the Byrd Rule. Even if the filibuster is circumvented through the reconciliation process, there are still limits on what the majority party can accomplish.
Opponents of the filibuster point to the intense gridlock caused by the difficulty of passing a bill. The last time a single party controlled at least 60 Senate seats outright was in the late 1970s when 61 senators were Democrats, although Democrats effectively achieved this in 2009 when they won 58 seats and had two Independents caucusing with them. Without a significant shift in the electoral outcomes of Senate races, it is unlikely for a party to get a 60-seat majority in the near future. Usage of the filibuster has skyrocketed in recent decades without supermajority control, being attempted mainly against judicial and cabinet nominees as well as legislation such as the Affordable Care Act.
Additionally, the filibuster’s detractors argue that its usage is anti-democratic. By preventing a majority party elected by a majority of citizens from passing bills into law, especially with a president also of the same party, the rule disregards the will of the voters and allows a party that loses at the polls to block popular reform. If a single party can win the legislature and the White House, why shouldn’t they be able to pass their own laws?
Currently, many Democrats wish to kill the filibuster so that a Democrat-controlled House of Representatives, Senate (with Vice President Harris’ tie breaking vote), and Presidency can use their victories in the 2020 elections to enact their legislative agenda. Eliminating the 60-vote threshold to end the filibuster will allow the Democrat majority to pursue gun-control reform, new voting rights laws, and other progressive policy goals.
The filibuster’s supporters argue that the high threshold to end debate forces legislation to contain at least some bipartisan support. When there is no supermajority to garner the 60 votes along party lines, the party in control must obtain votes from the minority. This way the legislation’s more controversial provisions can be watered down into a more palatable, popular form. In theory, the filibuster does force parties to work together; however, that is not a very common occurrence, as we have seen demonstrated with COVID-19 relief, rendering it highly unlikely the two groups work in tandem on any large legislation in the near future.
Supporters of the filibuster contend that its elimination will pave the way for the controlling party to pass broad legislation opposed by a significant minority of citizens. Because party control can be so tight, there is no clear mandate for a wholly Democrat or Republican agenda. As Mitch McConnell writes in a Wall Street Journal Op-Ed, “does anyone believe the American people were voting for an entirely new system of government by electing Joe Biden to the White House, a narrow House majority, and a 50-50 Senate?” Instead, the majority party should govern with the minority in mind.
Additionally, GOP leaders argue that Democrats will regret ending the filibuster. Majorities change over time. If Democrats kill the rule when they are in power, then Republicans will use their next majority to pass legislation which may be wholly unacceptable to a Democrat minority.
Is Anything Likely to Change?
One proposed amendment to the rule is to require a “talking filibuster,” as mentioned by President Biden. A talking filibuster would require those who attempt to filibuster to be present and actively speaking on the Senate floor in order to halt the progress.
Other reforms include making it more difficult to invoke the rule, changing which types of bills it can apply to, or defaulting to a talking filibuster as mentioned above. No matter what happens, it’s extremely unlikely that the rule is killed altogether.
Hypothetically, the Senate could just eliminate the rule if it so desires. However, ending debate on a resolution to amend Rule 22 would require a two-thirds majority of senators. There must be more votes to change the rules regarding a filibuster than to invoke the rule itself. Without GOP support, this won’t happen before the next election cycle.
Yet, there is another way to inadvertently change the rule by simple majority. Democrats can change senate “precedent” instead. This is what the “nuclear option” is. As Molly E. Reynolds explains in an article for the Brookings Institute:
The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer (typically a member of the Senate) agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.
This procedure was used in 2013 and 2017, when Harry Reid and Mitch McConnell, respectively, used the nuclear option to let a simple majority end debate for certain presidential nominations. By setting new precedent, a majority can effectively make a new rule without actually changing senate rules.
Some Democrats hope this process can be used to circumvent the rule. However, Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), two moderate Democrats, have expressed opposition to eliminating or circumventing the filibuster rule, meaning any such reform is likely to be very limited in scope.
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