The Filibuster Needs to Go
- Mar 16, 2021
- 8 min read
Updated: Mar 25, 2021
Hi all,
So Biden and Dems in Congress have managed to push through a huge comprehensive Coronavirus bill, which includes desperately needed stimulus checks for many Americans, funding for vaccine distribution, help for restaurants, state unemployment, aid to states in general, funding for schools, small businesses, food stamp benefits, housing aid, tax credits for families and workers, the list goes on. It’s a huge bill with trillions of aid that is very progressive and thorough and that has been sorely needed for all of 2020. But of course, it has met zero republican support in Congress, even though many of its provisions are popular even among republican voters:
“Conducted between March 6-8, the recent Morning Consult survey shows overwhelming support — 90% — among Democrats, 71% support with Independents, and even 59% with Republican voters.”
So, yea elections matter and this relief package was only possible because Biden won the Presidency, and because Democrats held the smallest of majority in the Senate and majority in the House. Not a single republican voted for it in the House or Senate.
There is almost no chance any of this would have happened if Republicans held a majority in either part of Congress. They had clearly no appetite for further stimulus or help for the American people, as the measly $600 relief checks they sent through after months of arguing last year seemed like pulling teeth for the Republican led majority in the Senate, and why go any further after an election was done? They clearly don’t actually care to represent their electorate, because even their voters are mostly positive towards the bill that they unanimously voted against
This is a big victory for Biden and the Democrats, and the start of their promises to the people for getting elected. Unfortunately, I believe most of the other promises will fall woefully short. Not necessarily all because of Biden or centrist Democrats, but because of the extreme dysfunction in our government and why almost nothing of huge substance has gotten done in decades in Congress; The Filibuster.
For those who aren’t aware, the Filibuster is a special rule in Congress that can prevent a law from being brought to a vote. This is why many many things aren’t getting done in our federal government. It makes sure that any large bill needs to have a supermajority of 60 votes to pass the Senate, and because one political party is entirely composed of bad faith actors who will absolutely not let anything pass from the other side, we have had a complete paralysis in government action for decades.
There are ways around the filibuster, which both parties of Congress have been abusing to actually get SOMETHING done occasionally. This COVID relief bill and the disastrous Republican Tax cuts were done through budget reconciliation. This is a special procedure that the Senate can pass certain laws under with only a simple majority. 50 votes (plus VP), no filibuster allowed. Under the budget reconciliation rules, this can only relate to laws that affect “federal spending and revenue.” It’s actually a pretty wide definition, and thus both sides of Congress have used it many times to stuff whatever policy they can under its umbrella to actually pass legislation occasionally.
But its’ not perfect, and requires certain definitions to be met and a variety of votes from the House and Senate and agreement from the parliamentary and only a few allowed per year and yea it gets very muddy and complicated to explain. It’s a band-aid thrown on a gaping wound to try to keep our government functioning when faced with complete gridlock.
We’ve already seen the issues with passing laws through this process, as more moderates in the Democratic party wanted the $15 dollar minimum wage left off the Covid bill once the Parliamentary ruled that it should not be allowed under budget reconciliation.
To understand how we got here, we need to go back in time a bit. Our government used to have its problems but it functioned and actually had legislation that was passed with simple majorities quite often. The filibuster, contrary to what many Republicans would have you believe, is not some enshrined concept fundamental to our democratic process that must never be touched.
In fact, it was rarely used for much of the country’s history and wasn’t anywhere in the Founding Fathers’ vision or made in the creation of our country. Alexander Hamilton eloquently expressed his opposition to what the filibuster creates: Minority Rule. And he accurately predicts the problems we now face today from it:
“But its (the minority) real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority…If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
Tedious delays, compromises of the public good, minority controlling the opinion of the majority, that’s exactly what we’re looking at in American politics today. And it’s largely thanks to the Filibuster. Simple majority of laws was what the Founding Fathers wanted because they saw what minority rule does to the government and how it paralyzes actions, even if its’ actions they don’t necessarily agree with. “The public business must, in some way or other, go forward.” This is why the filibuster as a structural rule didn’t even exist until around the mid 19th century, and its’ creation was a complete fluke:
“In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question (by simple majority vote), which meant ending debate and proceeding to a vote. But Vice President Aaron Burr argued that the previous-question motion was redundant, had only been exercised once in the preceding four years, and should be eliminated, which was done in 1806, after he left office.[11] The Senate agreed and modified its rules.[11] Because it created no alternative mechanism for terminating debate, filibusters became theoretically possible.”
Basically, yes. The lawmakers of the time made an Oopsie and forgot to put in a method to end debating by the majority. So, theoretically, someone from the minority party could debate until it was past the point that Congress could vote, thus stopping the vote. Yep, this now revered process that manages to hold up our entire government by minority rule in our Congress was put in our government completely by mistake over two centuries ago.
And by the 1840’s, some legislators caught on and began basically trolling the majority by endlessly debating to exhaust them and hold bills hostage. Few bills died this way, most still eventually passed and most of the time Congress still did things through simple majority, but the filibuster option was there and unchanged for over a century.
Then, during WWI, after the minority successfully filibustered some key votes to arm merchant ships and other war effort provisions, Woodrow Wilson and others in the majority led a charge to create the cloture rule. Finally, someone filibustering could be stopped. If two thirds of the Senate voted for it to end.
The filibuster continued slowly gaining popularity as the civil rights movement hit in the 1950’s. Southern minority Senators filibustered every bill they could to stop more fair legislation for black citizens.
“Sen. Strom Thurmond (S.C.), then still a Democrat, set the single-person record for the longest filibuster at 24 hours and 18 minutes when he spoke against the Civil Rights Act of 1957. Thurmond prepared by taking a sauna in advance to dehydrate his body so that all water consumed during the filibuster would be absorbed. Some have also hypothesized that he wore a catheter to solve the issue of bathroom breaks.”
Of course, the bill still eventually passed, but it was made a war of attrition to do so due to the filibuster. Many other laws and proposals for civil rights faced similar opposition through the years, to the point that the filibuster became a brand name for racism and segregation at the time.
But, the fact that Senators were forced into sessions for the entirely of the filibuster, and of course that the person filibustering needed to speak without interruptions or breaks for the entire time, discouraged widespread use of it throughout most of American history. No one wanted to stand on the Senate floor and lock all of their colleagues in with them for hours at a time.
Unfortunately, in the 1970’s due to a couple of measures like the dual track system, filibustering became much easier. Instead of having to stand on the floor and argue for hours, all a minority congressman has to do now to kill a vote is to say he or she plans to filibuster it. If 60 votes aren’t present in the Senate to stop the filibuster, the bill dies. No grandstanding for 15 hours arguing about it on the Senate floor while wearing a catheter to keep black people from using the white man’s water fountain. It’s now a simple procedural thing that effectively makes almost all legislation in the Senate require supermajority with no effort from the minority. Minority rule, as Hamilton and the other Founding Fathers feared.
Once the 90’s hit and Republicans went full “own the libs” obstructionist, the filibuster became their key weapon to keep government at a standstill.
“Statistics illustrate the explosion in filibusters: there were 357 cloture motions between 1975 and 1992, compared to 1,803 since 1993.”
Of course, Democrats have used the filibuster as well to hold Republican controlled congressional laws from being enacted. It’s not a tool used solely by the right. And that is part of the resistance from “the nuclear option” as its’ called to remove the filibuster today. If the filibuster wasn’t in place for Trumps’ presidency while Republicans controlled the Senate, House, and Executive, what damage could they have done? What damage could a future Republican held Congress do with a simple majority rule on all legislation?
These are fair questions, but I push back and say, “What damage does it do if we DON’T end the filibuster?” Because at this point, the war of attrition and obstruction is benefiting the Republican party much more than the Democratic. Mitch and Trump and Ryan are perfectly fine with constant standstill of the government. When your party wants to prove that the government is dysfunctional, it's nice to keep a rule that makes government, well, dysfunctional. Republicans as a result, don’t need to actually GOVERN. They can whine and blame the Democrats and immigrants for all of our problems, and occasionally shove down a tax break for all their rich donors when they’re in power.
Want to make the government more dysfunctional? Appoint people to administrative positions that are tasked with being completely incompetent and have vested interest in seeing those branches of government fail. No need to pass legislation or have any policy proposals. The filibuster is the Republican party’s blanket excuse to not even try to make government work, and a great argument for why the government doesn’t work at all from them. And they’ve been succeeding at convincing our citizens that it can never work for decades now, to the point that many people have no faith in our institutions.
I say it’s time to change that narrative. Democrats have the power right now to completely end the filibuster for good. Majority rule can finally function without weird obscure budget reconciliation rules. All the policies that Biden ran on and others that Democrats propose; minimum wage, immigration reform, global warming policies, voter reform, healthcare reform, can actually get DONE with 51 votes. No need or ability for the minority to obstruct it all. And guess what, when voters see the reward for voting for the party that ACTUALLY governs and has policies that benefit us all, they may be more inclined to keep voting for that party.
Yea, Republicans will probably win control of both Houses again at some point and be free to push forward any disastrous policy they want. Of course, if filibuster can be eliminated and Democrats then pass HR1, the most comprehensive and democratic voter reform bill ever, Republicans will probably stop winning so many elections because they can’t, you know, cheat. But that’s a blog for later.
Even with all that, if the filibuster goes and eventually Republicans manage to claw their way to majority in the House and Senate, I agree with Hamilton.
“The public business must, in some way or other, go forward.”
Stagnation and inaction and dysfunction will only lead to our country’s death by Republican hand, just a bit slower.
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