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Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
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What’s a Filibuster?
There is no such thing as a "filibuster-proof majority"
March 4, 2019
Sen. Elizabeth Warren (D-MA) recently spoke in favor of eliminating the filibuster altogether.
That’s a bad idea. Filibusters shouldn't be eliminated. They slow down the process so that a thundering majority can't rush bills through without proper thought. But the rule should be more strict.
Whenever one party in the Senate has at least sixty seats, the media crows about a “filibuster-proof majority”. That sounds good on the evening news but, in real life, there is no such thing. Filibusters slow the legislative process. That can be both beneficial and harmful for America.
The rules have changed many times and there’s always a lot of media chatter about changing them again. But neither party wants to change those rules because they always benefit the minority party, and each party will have its turn in that position.
You won't find filibusters in the U.S. Constitution, but they are constitutional. Article I, Section 5, Clause 2 authorizes the House and Senate to make their own operating rules. Senate rules permit filibusters on the bills it considers. House of Representatives rules do not permit filibusters. The term first appeared in politics in the 1850s.
A filibuster is an obstructionist tactic that avoids a floor vote on a bill. Senate rules permit unlimited debate on all bills, motions, amendments, and resolutions. Votes can only occur when all senators are finished speaking. Although they are usually planned, any senator can begin a filibuster on any topic at any time. That prevents a vote, and thus stops the bill's passage.
In the past, senators have used filibusters to prevent votes on the Treaty of Versailles (which ended World War I) and some economic and social legislation during the Depression. The late Sen. Strom Thurmond, R-SC, holds the record for a solo filibuster of 24 hours and 18 minutes when he unsuccessfully tried to block passage of the Civil Rights Act of 1957. Southern senators staged a 57-day filibuster against the Civil Rights Act of 1964. They lost that one, too. Senate liberals used a filibuster to resist passage of the capital gains tax cut in 1991.
In 1917, the Senate changed its rules to allow "cloture", which is the term for ending a filibuster and voting on the bill before them. At that time, they required 67 votes to pass a cloture motion. They changed the cloture rule to 60 votes in 1975.
In 2013, new rules eliminated filibusters for all executive and judicial branch nominees, except for the Supreme Court. They called it the “nuclear option”.
Any senator can make a cloture motion. If the motion gets at least 60 votes, debate ends and the "up or down" vote on passing the bill begins. If the motion fails, the filibuster continues and there won't be a vote on the bill. Most Americans think it takes 60 votes to pass anything in the Senate because our “journalists” are too lazy to explain it. However, once a bill does get to the point of an "up or down" vote, it still only takes 51 votes to pass.
Routine cloture motions usually fail because it's difficult to get the 60 votes necessary to approve them. No matter how many senators are in your party, each senator still makes her or his own decision. While most members of Congress usually vote with their parties, they are never required to do so. Depending on the issue, there are usually a few who cross party lines in each direction. So the "majority" changes on any given topic, and Democrats are known for their lack of party discipline. It's often said that organizing Democrats is like herding cats. So if you can't depend on the votes, then your majority is not "filibuster proof".
Today, there are 45 Democrats, 53 Republicans, and 2 independents in the senate. The independents allegedly caucus with the Democrats, usually giving Republicans a 53-47 majority. Since Republicans are much better at controlling their members, their filibusters are much more reliable. Thus, the Republicans can obstruct all efforts to pass anything in the Senate. And they make full use of that power.
Under previous rules, the filibustering senators would take turns endlessly debating the bill before them. They were trying to change their colleagues' minds on the subject, or annoy them to the point where they decided to drop the bill altogether. You might remember Jimmy Stewart's famous filibuster scene from the movie Mr. Smith Goes to Washington.
Since 1975, the rules don't require that monumental effort and now permit "silent" and secret filibusters. Senators merely have to announce a filibuster. They never actually have to stand on the Senate floor and explain why they oppose the bill, or suggest alternative actions, or anything else. They can just block any bill any time they feel like it. And Republican senators feel like it a lot. That's why Congress can't get anything done.
Silent filibusters allow Senators to hide behind the rules.
They don’t have the guts or integrity to stand up, speak their minds, and take responsibility for their actions.
The Senate should restore the talking filibuster rule, but it won't happen without massive public pressure.
For more information:
Congressional Research Service: Filibusters and Cloture in the Senate
Read the Constitution