A journey in intellectual honesty and humility: Filibuster

Description of the Filibuster

A United States Senate rule that was created by accident, and weaponized by obstructionists to stall progress. It has been used so much to stall progress that some refer to the Senate as a graveyard where legislative bills go to die because of its constant use. This United States Senate rule is called the filibuster. The filibuster was created by accident when at the advice of Vice President Aaron Burr, the Senate got rid of a rule called “previous question” motion because it was rarely used and so it was deemed unnecessary (Klein, 2020). What they did not realize was that by removing this rule they had created the filibuster. The filibuster is a Senate rule that allows a small group of senators (41 out of100) to stop a bill from even getting a vote (Filibuster facts, n.d.). Ways Senators can filibuster a bill include standing on the senate floor and talking about anything they wish, for as long as they wish. This type of filibuster is referred to as the talking filibuster or as “Mr. Smith Goes to Washington”. It took some time after the removal of the “previous question” motion for senators to realize this. The first filibuster occurred in 1841 over an issue of patronage. During those times, the filibuster was used to slow down the majority’s agenda, not kill it. It was not until the minority party began using the filibuster to kill the majority party’s agenda that the majority party began looking for ways to end filibusters. In 1917 they settled on Senate Rule 22, better known as Senate cloture. At first, Senate Rule 22 required that 67/100 or 67% of Senators vote to end a filibuster. In 1975, Senators came to a compromise that saw the required number of senators needed to end a filibuster reduced to 60. So, a supermajority is needed to end a filibuster. They also adopted a rule that prevented a filibuster from stopping them from taking up other bills. This meant that Senators’ filibustering bills no longer had to stand on the floor to signal that they were filibustering a bill. They could now be more discreet about it. This discreteness allowed for the filibuster to go under the public radar for some time until the civil rights era when Southern Democrats used it to slow down Civil Rights bills such as the anti-lynching and few Civil Right Act bills.

Debating and compromising was the norm for ending a filibuster until the 21st century when both parties used it and continue to use it as an obstruction tool rather than a tool to force debate and compromise. This has led to both parties tweaking the votes needed to end a filibuster for some things by using the “nuclear option”. The “nuclear option” requires only 51/100 or 51% of Senators to vote to end a filibuster. This makes it harder to filibuster some things. In 2013, the Democrats enacted the “nuclear option” to allow for President Obama’s judicial and cabinet nominees to pass through the Senate with only 51 Senate votes needed. Republicans followed up by using the “nuclear option” in 2017 to make it easier for President Trump’s Supreme Court nominees to be voted to the Supreme Court. That is how President Trump could place three Supreme Court Justices on the bench. Those advocating for the filibuster include the Heritage Foundation, Marc A.Thiessen, and Daniel Lips. Those advocating against the filibuster include Fix Our Senate, a coalition of over 70 organizations advocating for the elimination of the filibuster, Robert Reich, Rashad Robinson, Alaina Perdon, Jack Rakove and Caroline Fredrickson.

Positionality statement

I am a Democrat, so I voted for Joe Biden in the 2020 Presidential Election. I voted for him because he was the better option of the two and he was saying he would work to pass most of the things the progressive democrats, which I identify as, wanted. Long story short, Joe Biden won. I now thought we would see bills regarding police reform, climate change, infrastructure become law because Democrats controlled the White House, the House, and the Senate. Then, I started hearing pundits and reporters mention the filibuster and how that will be a roadblock for Joe Biden’s legislative agenda. However, Joe Biden and the Democrats successfully passed a COVID-19 relief bill, so I thought in a couple of months the more important things he promised during his campaign will have the same resolution. Then a couple months went by and none of these things had become law. I wondered what the Democrats were waiting for and what was the issue. Apparently, the issue is that Republicans are filibustering these bills. I was surprised because of my recollection when Ted Cruz went to the Senate floor to filibuster a bill; he did so by reading Dr. Seuss’s Green Eggs and Ham on the Senate floor. So, I thought a Senator must stand on the floor to signal they are filibustering a bill and no Senator did that. Not only were Republicans discreetly filibustering these bills, but some Democrats were unwilling to reform the Senate rules so that these bills could pass. Other Democrats were calling for its elimination.

At first, I agreed with the Democrats that were calling for the elimination of the filibuster. I believe we must abolish anything that is being used to stall progress. Also, if the Democrats wanted to get anything done and keep control of the House and Senate, they must eliminate the filibuster. Republicans should not be able to hold more power than the Democrats who are the majority. How is it that the party that lost has more power than the party that won? By eliminating the filibuster, the democrats would reclaim their majority rule and be able to pass all their legislative bills, which are popular with most Americans, not just with Democrats.

Arguments Against the Filibuster

Those that feel the way I felt about the filibuster and who are against it argue that the filibuster is unconstitutional, connected to racist policies, that the way it is now used no longer supports the deliberative process, and promotes obstructionism.

First, Reich (2021) argues the filibuster is unconstitutional. The filibuster is not in the constitution. In fact, the Framers went to considerable measures to guarantee that the majority, rather than the minority, ruled (Reich, 2021). In Federalist 22, Alexander Hamilton called a supermajority rule “a poison” (Tyler, 2021). While, in Federalist 58, James Madison said a supermajority vote could serve as a “shield to some particular interests, and another obstacle generally to hasty and partial measures” (Supermajority votes in the House, 2018). These feelings resulted from the Articles of Confederation and the negative impact its requirement of a supermajority vote had on the US Government. This negative impact was a major reason the Framers called the Constitutional Convention. After they heard each other’s arguments on a supermajority, they settled on requiring only a simple majority vote for both houses of Congress to pass legislation. The framers clarified that ratification of treaties, impeachment, overriding a presidential veto, amending the constitution, and expulsion of members were the only things that require a supermajority. So, not only does the filibuster violate the constitution, but any politician that uses it does as well.

Second, Robinson (2021) argues the filibuster is connected to racist policies. In fact, in 1922, the House enacted a crucial anti-lynching bill to counteract the Ku Klux Klan's worst violence, but southern Senate Democrats filibustered it in the Senate (Robinson, 2021). In 1935, Congress attempted to pass this bill again and again, it was filibustered. To this day, anti-lynching legislation has never been passed by Congress.

The longest talking filibuster in history happened during the Civil Rights Era when Sen. Strom Thurmond (R-SC) filibustered the 1957 Civil Rights bill for 24 hours and 18 minutes (Eliminating the filibuster, 2021). Southern Democrats used it so much that when political scientist Sarah Binder and Steven Smith set out to identify every bill from 1917 to 1994 that they believed the filibuster to be the sole reason it failed, they found that half of the bills were civil rights bills, such as anti-lynching legislation offered in 1922 and 1935 (Beauchamp, 2021). In recent years, the filibuster has been used to block major legislation that communities of color would benefit from, such as the Affordable Care Act, the Dream Act, the John Lewis Voting Rights Act, and the George Floyd Justice in Policing Act.

Third, Perdon (2021) argues the way it is now used no longer supports the deliberative process. The barrier between deliberation and decision has now blurred to where it no longer exists (Rakove, 2021). They feel that the fact that senators opposing a bill no longer have to stand on the floor to filibuster shows how little the filibuster has to do with constructive debate. They feel that in recent years politicians have used the filibuster more for grandstanding and for media attention than for debating a bill. They point to two tactics opposing senators used to prevent debate. First, they use the “silent filibuster” which allows them to block legislation without having to debate. Silent filibusters are a full reversal of the filibuster’s deliberative potential, demonstrating that the procedure is only a three-fifths majority requirement for normal legislation (Polubinski, n.d.). Second, opposing senators extend their filibuster and prevent debate by talking about unrelated topics.

Finally, Fredrickson (2021) argues it promotes obstructionism. Caroline Fredrickson points to the fact that cloture motions, which are indicators that filibusters happened, have skyrocketed since 2006 and have reached an all-time high in this current senate. The number of cloture motions in the previous ten years (959) is nearly equal to the total number of cloture motions in the 60 years between 1947 and 2006 (960) (Fredrickson, 2021). A huge percentage came during the Obama administration because senate Republicans used the filibuster more than ever in history. To combat the Republicans’ unruly use of the filibuster, the executive branch in recent years at the expense of democracy has used its power to sign bills into law rather than have the Senate take them up on the floor.

Arguments in Favor of the Filibuster

Those that are for keeping the filibuster argue it promotes compromise on legislation, provides a constraint on majority power, supports public confidence in American governance, and reinforces the structure of the Senate.

First, Bovard (2017) of the Heritage Foundation argues it promotes compromise on legislation. The filibuster, rather than being only a means of obstructing, actually forces compromise (Bovard, 2017). She points to the fact that the framers designed the Senate to be a consensus-driven body. George Washington told Jefferson that the framers had created the Senate to “cool” House legislation just as a saucer was used to cool hot tea (Senate created, 2020). She and others see the 60-vote threshold needed to end a filibuster as a saucer to cool the partisanship that is coming from the House of Representatives and as a tool to force the majority party to come to a consensus with the minority party. They believe that eliminating the filibuster would make the Senate as partisan as the House of Representatives.

Second, Thiessen (2021), former speechwriter for George W. Bush, argues it provides a constraint on majority power. Thiessen provides examples of how Democrats used the filibuster to constrain the Republican party from passing Trump’s radical agenda. Democrats used it to block Trump from funding his border, to prevent the passage of the Cares Act, to block legislation that would have forced “sanctuary cities” to cooperate with federal officials, etc. (Thiessen, 2021). Even the threat of Democrats potentially filibustering legislation stopped the Republicans from moving on priorities including entitlement reforms, health care reforms, and the defunding of Planned Parenthood. Thiessen warns Democrats that if they eliminate the tool, they used to stop Trump from passing his agenda to pass their own, agenda, it will not only lead to Republicans passing Trump’s agenda once they become the majority again, but to a populist backlash that might force them out of power (Thiessen, 2021).

Third, Lips (2021) of the Federalist Society argues it supports public confidence in American governance. Lips points to a Pew research in 2019 that revealed that the percentage of Americans who trusted that the federal government can do the right thing was at 17%. A record low for the public’s confidence in the federal government. He puts some of the blame for the record low public confidence in the federal government at the feet of the elimination of needing bipartisanship for cabinet, judicial, and Supreme Court nominations and believes that eliminating the filibuster entirely to give the majority party absolute majoritarian power would further decrease the public’s trust in the federal government (Lips, 2021).

Finally, John Cooper (2020) of the Heritage Foundation argues it reinforces the structure of the Senate. The filibuster is a tool the minority can use to prevent the Senate from becoming as partisan as the House of Representatives and to keep it as the “saucer’’ of Congress. Eliminating the filibuster would allow the Senate to become partisan with compromise no longer required, and would take away the minority’s power of keeping the majority in check. Also, the elimination of the filibuster would be an assault on the rights of the millions the Senate minority represents (Cooper, 2020).

In the middle: Reform measures for the Filibuster

Although most Democrats are for the elimination of the filibuster, some in the party want to keep it, but reform it because they see value in having it. Some of the most popular filibuster reforms these democrats want to see are the reinforcement of the talking filibuster, the reduction of votes needed to end a filibuster, and the ratcheting down of the number votes needed to end a filibuster as every day passes.

First, many traditional democrats want to bring back the talking filibuster. One of those democrats advocating for this is President Joe Biden. In an interview with ABC, when asked about the talking filibuster, he re-emphasized that he wanted to see the talking filibuster be brought back by saying “you have to do what it used to be when I first got to the Senate back in the old days” and urging the chamber to revert to its former practice of requiring disagreeing members to speak on the floor to postpone decision on a bill (Wise & Kelly, 2021). He talked about how when he was a Senator the talking filibuster was the way Senators filibustered a bill. In fact, before 1975 when the Senate changed Senate Rule 22 which also saw the requirement for Senators to stand on the Senate floor to filibuster a bill eliminated so the Senate could continue passing other legislation, the talking filibuster was the only way Senators could filibuster a bill. Senators had to stand and talk for their filibuster to stay alive. After 1975, Senators can now just send out an email telling the Senate Majority that they are filibustering a bill without letting the public know that they are. Making it easier to filibuster a bill no matter how big or small it is.

Second, others would like to revise the Senate Rule 22 and reduce the number of votes needed to end a filibuster. The Senate has done it once in 1975 when they voted to reduce the votes needed to end a filibuster from 67 to now 60 votes. Now they are asking for the threshold to be reduced from 60 to 55 votes. A super majority would still be needed to vote to end a filibuster, but limits the opportunities for minority rule by requiring a larger minority for obstruction (Barnes et al., 2021). Thus, allowing for actual compromise in the Senate.

Finally, another type of filibuster reform that some Democrats have advocated over time is ratcheting down the number of votes needed to end a filibuster as every day passes. This type of filibuster reform was first introduced in 1995 by former Democratic Senator from Iowa, Tom Harkin. Under Harkin’s plan, the threshold for ending a filibuster would start at 60 votes, but after several days of debate, it would drop to 57 votes. Then, after several more days of debate, it would drop to 54 votes and finally, after eight days of debate, it would drop to 51 votes (Millhiser, 2021). Making it easier for a simple majority to vote to end a filibuster and returning the power to the majority.

Reflection with intellectual honesty and humility

Going into this paper, the only thing I knew about the filibuster was that the Republican party was using it as an obstruction tool to stop bills that I and most Americans would like to see pass. It has been infuriating seeing the Republicans use the filibuster in this way. I was also upset that some Democrats were refusing to say that they would eliminate the filibuster, which can be done with only a simple majority vote. I thought to myself, “how can these Democrats allow Republicans to continue to do this”.

My frustration with how the Republicans were using the filibuster and with some Democrats led me to believe that for this country to progress, the filibuster must be eliminated. I strongly believed that, but I did not let my personal feelings about the filibuster affect the way I did research for this paper because I wanted to learn more about the filibuster. As I began doing research, I learned the history of the filibuster. I learned it was not in the Constitution, that historically it has been used as a delay tactic and not as an obstructive tool, that the rule to stop it, Senate Rule 22 has been reformed, and that it can be eliminated. After learning all that, I began getting into the arguments that are for and against the filibuster. I learned that the power a party holds determines if the people of that party are for or against the filibuster. So, right now, most Democrats are against the filibuster because they are the majority party and Republicans are for it because they are the minority party.

As I was reading the Democrats’ case for eliminating the filibuster, I agreed with all their points. I thought the Republican’s case for keeping the filibuster was reasonable, but found them to be hypocrites because nowadays they are not using the filibuster as a tool for compromise. We recently saw this when Joe Manchin crafted a compromised version of the Freedom to Vote Act bill, hoping Republicans would get on onboard to end their filibuster of this bill. Instead, no republicans voted to advance this legislation (Summers & Walsh, 2021). Then, I began reading some Democrats’ case for reforming the filibuster and their preferred methods to achieve that. I agreed with their methods for reforming the filibuster and felt that they were coming from the position of the shoe being on the other foot. That got me thinking about the possibility of Donald Trump getting elected again and passing his agenda without the filibuster being there for the Democrats to stop him from doing so like they did during his first term.

Besides learning that the Democrats used the filibuster to stop the Republicans from accomplishing Donald Trump’s racist and destructive agenda, I also learned about another time it was used for good. In 2005, the Bush administration and the Republicans were looking to privatize Social Security. The Democrats filibustered the bill that would make that possible. In the end, the 55 Republican Senators could not get 5 Senate Democrats to vote with them to end the Democrats filibuster (Wallace-Wells, 2021). The Democrats had successfully killed the bill and kept Social Security from being privatized.

These two examples of the filibuster being used for good, the scary possibility that if elected again, Trump could pass his agenda if the filibuster was eliminated, and there being reasonable filibuster reform measures are the reasons I have changed my position on the filibuster. I no longer believe the filibuster must be eliminated. Instead, I now believe that the filibuster is a necessary tool that needs to be reformed. My favorite filibuster reform measure is the “ratcheting down” the votes needed to end a filibuster as every day passes. I believe this reform measure satisfies both sides of the argument because it allows for debate and compromise which senate Republicans want and it will eventually allow for senate Democrats to pass their legislative bills, making the filibuster again a tool used to delay and not to obstruct. There are some bills that are exempt from the filibuster. A reconciliation measure, like the budget resolution, cannot be filibustered in the Senate, therefore, it only requires a simple majority to advance to a final vote (Budget reconciliation, 2021). I believe that the filibuster exception that has been granted to budget resolution and reconciliation bills should also be granted to bills that address voting rights, such as the John Lewis Voting Rights Act, because voting rights are as important as the budget.