This is NOT a Sunday story. It’s actually more of a Sunday “lesson”, in the US Government, and specifically, that odd rule called the “filibuster”.
School House Rock
We Americans think of our government in basic terms. One Person should equal one vote, and everyone’s vote should be equal to everyone else’s. We have a representative democracy, a government where the people elect legislators who then vote on proposed laws, called bills. The majority vote of those legislators “wins”, and they become law. If you’re old enough to remember “School House Rock”, you know how it all goes.
But we also know that the simple basics aren’t reality. One person, one vote depends on which election it is, and on whether everyone gets the opportunity to vote. Legislators do vote on bills, but it’s never as simple as just voting. There are all sorts of impediments: rules to get the bill to a vote, committees that determine what is in the bill, even committees to determine what the rules of the debate will be.
And that’s just one House of the US Government.
The Constitution
The Constitution doesn’t say too much about passing bills into law. While it says that the bill must “pass”, it doesn’t define how that happens. Presumably, passing means a majority vote. And for certain actions, such as overriding Presidential vetoes, and ratifying treaties, one or both Houses are required to have a two-thirds majority.
We do know that the Founding Fathers intended different roles for the two Houses of Congress. The House of Representatives is elected directly by the people, every two years. They were intended to be “close” to the people, and “hot” with popular ideas. The House, and therefore the people, were also in charge of the finances. All appropriations bills must start there.
The Senate originally was chosen by the State Legislatures, two for each state. Senate terms were six years long. Supposedly Washington described the Senate as “…the saucer to cool” the hot ideas of the House. And the Senate was given power to control foreign affairs and Presidential appointments.
Things have changed since 1787. The House has become incredibly partisan, driven by gerrymandering that guarantees one party or the other the vast majority of Congressional seats. All 435 seats are up for election every two years, but in reality, only thirty-five or so will be true contests. For the rest, the contest is in the party primary before the general election, if there’s a contest at all.
Meanwhile the Senate has become more competitive. The Seventeenth Amendment mandated Senators are directly voted by the people. And while states might be partisan one way or another, they aren’t manipulated through gerrymandering to favor a side. So today the Senate tends to be the home of the “hot ideas”, and the House is more controlled by institutionalists.
Traditional Filibuster
The infamous impediment to passing bills in the Senate is the filibuster. It’s not in the Constitution, nor in the House of Representatives. It wasn’t even in the original parliamentary rules written for the Senate by then Vice President Thomas Jefferson. The filibuster arrived after Jefferson became President, and his Vice President, Aaron Burr, was presiding over the Senate.
Jefferson’s rules call for a debate before the final passage vote. The minority could delay by keeping the debate going. The winning side then has to have a vote to end the debate, called a “cloture motion”. (For those familiar with Robert’s Rules of Order, based from Jefferson’s Rules, this is ‘calling the previous question’, and requires a two-thirds vote to pass, end debate, and begin the vote).
Like Robert’s Rules, the Senate originally required a two-thirds vote to agree to cloture, ending debate and bringing the final vote. However, the Senate also allowed for a vote to begin when debate ends simply because Senators just stop talking. So to prevent a vote, Senators must “hold the floor” and continue the debate. Under Senate rules even a single Senator can hold the floor, as long as she or he remains standing, talking, and doesn’t leave the chamber. No other Senate business can go on while the “filibusterers” hold the floor.
A single Senator (Mr. Smith goes to Washington) or a few Senators can hold the floor. As long as the “other side” can’t muster two-thirds of the Senators to end debate, they can go on as long as physically possible. The record for a single Senator filibustering: Strom Thurmond of South Carolina held the floor singly for twenty-four hours and eighteen minutes to stop the 1957 Civil Rights Act.
Today’s Filibuster
The filibuster changed in the 1970’s, by an agreement made between the two political parties. First, they reduced the cloture number to sixty Senators (three-fifths) instead of sixty-seven (two-thirds). Second, before debate on a bill even begins, there is a cloture vote. If the majority side can’t muster sixty votes, then the bill is “considered” filibustered, and the debate doesn’t even begin. In exchange for making it “easier” to end the filibuster, the actual act of filibustering, holding the Senate floor, is no longer necessary. Either the majority has sixty votes, or a bill is done.
So, if we are a democracy, where the majority is supposed to be able to “rule”, why allow thirty-four (originally) or forty (now) to control what bills pass? Why give the minority control of legislation?
One of the strongest current supporters of the filibuster today is Senator Joe Manchin from West Virginia. He reasons that in our incredibly partisan politics, the existence of the filibuster requires Senators to work together to get legislation. With only a couple of exemptions from the rule, bills passed in the Senate must be bipartisan, with at least ten votes from the minority party (in our current 50-50 Senate). So every bill must be negotiated by the majority party with the minority party.
Otherwise, Manchin reasons, the Senatee becomes a tit-for-tat body. When the majority changes, they will simply undo everything the former majority achieved. Instead of advancing the national interest, the main focus will be to “take back” what the other side did when they had the majority. Nothing new will get done.
And inevitably, that “other” party will someday get control of the Senate. And when they do, the new minority party will want to have the control that the filibuster offers.
Filibuster’s Future
We got a hint of Manchin’s future with the Affordable Care Act. It passed with Democrats alone (a sixty vote majority) in 2010. With the election of a Republican President in 2016 and Republican control of the House and Senate; they attempted to repeal the ACA seventy times. The Senate came within one vote of achieving that goal, with Arizona’s John McCain giving his famous “thumbs down” in the middle of the night to save the program.
Senator Manchin’s view does depend on one thing – that the minority party wants to get “something” done. If a determined minority just wants to obstruct all legislation, then his bipartisan negotiations never happen.
Senator Warnock of Georgia wants to end the filibuster. He argues that its main use has been to delay civil rights legislation. The filibuster has been a tool of segregationists and those who wish to maintain unequal privileges in the United States since the Civil War. Even today, in that long tradition, many of the bills “filibustered” by the Republicans have been ones that would increase voting and economic opportunities for minorities.
Speaker Pelosi argues that with the Insurrection of January 6th, and the “clear and present danger” that still threatens our democracy, the Senate must act. The “gentlemen’s agreement” of the filibuster now stands to protect those that want to alter our form of government, whether in the Senate, on the Supreme Court, in the State Houses or at Mara Lago. They are the threat to our democracy.
The Votes
The bottom line: the filibuster isn’t in the Constitution, and it isn’t even a “law”. It’s an agreement in the Senate, a “rule” voted on every two years. They can repeal it tomorrow. And that “repeal” wouldn’t require sixty votes; Senate procedural rules pass with a simple majority vote. If Democrats, including Manchin and Arizona’s Senator Sinema, decided to restrict or remove the filibuster, they could. And if Republicans get control of the Senate in this November’s election, they can too.
President Joe Biden is a “Man of the Senate”. He served thirty-six years as a Senator and eight more as the Vice President presiding over the body. He is an institutionalist, and has always supported the filibuster in the past. But this week even he suggested that the rule must be modified to pass laws codifying the principles of Roe v Wade and passing the voting rights acts.
That’s a big step for democracy, and America. But it’s not possible without fifty votes in the Senate. And until Manchin and Sinema change their minds, or more Democrats are elected to the Senate, as the line from the musical Hamilton goes, “You ain’t got the votes”.
Our democracy is at risk. Many are looking to the next Presidential election. But the 2022 election is just as important. Who controls the House and more importantly, the Senate, may well decide the fate of our Constitutional “experiment” in government.
