By Jessie Seigel / Washington, D.C.
Mitch McConnell has warned that if the Democratic majority dares to eliminate the filibuster, Republicans will make it impossible for the Senate to do anything. According to the Senate Minority Leader: “Nobody serving in this chamber can even begin—can even begin—to imagine what a completely scorched earth Senate would look like…this is an institution that requires unanimous consent to turn the lights on before noon.”
This threat comes from the man who, when leading a majority, took absolute pleasure in calling himself “the Grim Reaper,” indicating that the Senate was the chamber where Democratic House legislation went to die. Obstruction is McConnell’s middle name and scorching the earth is all he has ever done. Though now in the minority, he is apparently threatening that if we thought he was “the Grim Reaper” before, we ain’t seen nothin’ yet.
If we want democracy to survive, we cannot allow the Democrats to be bamboozled by McConnell and his Republican cohorts or allow the need for filibuster reform to be derailed by McConnell’s threats.
We are at a crucial moment in our history. Republican-controlled state legislatures are rushing to pass laws to entrench voter suppression before the 2022 midterm elections. Only the Senate’s passage of two new voting rights bills will prevent this injustice, and only a Republican filibuster can stand in the way of that passage. To grasp the urgency of reforming or eliminating the filibuster, we need to understand not only its origin as a weapon of legislative sabotage but how, over time, it has morphed into a procedural device that can bring to a dead stop the capacity to pass any needed legislation—including that protecting the right to vote.
The Filibuster’s History:
The word “filibuster,” said to originate from a Dutch word meaning “pirate,” is a fitting name for a maneuver traditionally used to hijack the Senate’s ability to function. The right to filibuster is not embedded in the Constitution but merely a rule created by the Senate in the 1850s, just before the Civil War, to protect the interests of slaveholding states.
Originally, conducting a filibuster to delay or stop passage of legislation required a senator to stand on the Senate floor, speechifying until his voice, his energy or his bladder gave out. Absent such exhaustion, 67 votes (two-thirds of the Senate) were required to end a filibuster (called cloture—ending debate and taking a vote). In 1975, that requirement was changed to 60 votes (three-fifths of the Senate).
But when the 60-vote threshold was adopted, the rule was also changed so that a senator no longer had to hold the Senate floor by standing and speaking continuously, preventing other matters from being raised or considered. The reasoning behind this change was that while the filibuster delayed vote on a particular bill, the Senate could conduct the rest of its business. But the practical result was that a senator only needed to state an intention to filibuster in order to place a bill in limbo—never to be considered at all.
By 2013, the frequent use of the filibuster to frustrate President Obama’s ability to make appointments became intolerable. So, the Democratic majority changed the rule for lower court and administrative positions, allowing a simple majority to end debate and permit an up-or-down vote on those nominees.
In 2017, during President Trump’s administration, the Republican majority further revised the rule so a simple majority could end debate on Supreme Court nominations, enabling them to ram through the appointments for life of right-wing justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Though some have claimed that the Democrats’ 2013 change began a tit-for-tat on filibuster restrictions, the Republicans’ moves to restrict its use far predated this.
In the early to mid-2000s, when Democrats tried to hold the line against President George W. Bush’s conservative appointments, Republicans threatened to change Senate rules to forbid use of the filibuster for judicial nominees. Senator Trent Lott called this threat “the nuclear option,” and the nickname stuck.
Determined to preserve the filibuster, a group of seven Republican and seven Democratic senators, dubbed the “Gang of 14,” took it upon themselves to agree that the Democrats would not filibuster except in “extreme circumstances,” and in return, Republicans would not exercise the nuclear option. That is, the seven Democrats apparently agreed that they generally would vote with the Republicans to ensure the 60 votes necessary to overcome a filibuster.
This amounted to the Republicans agreeing not to get rid of the filibuster so long as the Democrats agreed never to use it. But since these Democrats agreed not to use the filibuster, they were only preserving it for Republican use when that party was again in the minority.
As a result of this misguided deal, five of the 10 Bush judicial nominees the Democrats opposed were installed by the Republicans. (Three of the 10 had withdrawn before the deal was struck.) Furthermore, the Gang of 14 unanimously supported a cloture vote to end debate on the nomination of Samuel Alito to the Supreme Court.
As anyone could have predicted, the Republicans did not consider that deal to restrict them once they were in the minority. The remaining Republican members of the Gang of 14 joined in two successful filibusters of President Obama’s judicial nominations.
If we are to preserve the right to vote and majority rule—which constitute the essence of a democratic republic—the Democrats cannot afford to fall for any more such one-sided deals or for disingenuous calls for bipartisanship coming from their Republican counterparts. These “colleagues” do not have bipartisanship or compromise in mind, but only their own advantage. Accordingly, the Democrats must approach their own strategies in the same way.
The Current Filibuster Conundrum:
More than 40 Republican-controlled state legislatures are in the process of trying to pass laws that will severely limit nearly every means to cast a vote, the goal being to suppress electoral participation by Democratic voters. If these states succeed, they will make it impossible for the Democrats to fairly compete in the 2022 midterm elections. And once Republicans use that voter suppression to gain control of the Senate and the House of Representatives, we will likely be living under hardcore minority rule for a long time to come.
Passage of HR1, the For the People Act (expanding voting registration, early voting, voting by mail, and limiting gerrymandering), and HR4, the John Lewis Voting Rights Advancement Act (restoring federal oversight of discriminatory practices that the Supreme Court’s conservative majority threw out in 2013 in Shelby v. Holder) would put a stop to the state Republican parties’ anti-democratic push. But to do so, HR1 and HR4 must be passed before the midterm elections, and that requires overcoming a Republican filibuster. Given how tight the Democrats’ majority is in the Senate, there is no hope of getting the 60 votes needed to do so. So, reform or elimination of the filibuster is urgently needed.
President Biden appears to be coming to terms with this reality. Though he seems to prefer retention of the filibuster in some form, Biden recently stated, “It’s getting to the point where, you know, democracy is having a hard time functioning.” He specifically referenced the original filibuster rule when one had to stand up, command the floor, and keep talking.
Although a change to the filibuster only requires a majority vote, the Democrats’ majority is slender. All Democratic votes will be needed and, at this time, at least two Democrats oppose change.
Senator Kyrsten Sinema (Ariz.) has opposed elimination of the filibuster on legislative matters. As she puts it, “Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party,” and “the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.”
Likewise, Senator Joe Manchin (W.Va.) has based his opposition on protection of the minority’s right to be heard, stating: “I’m not willing to take away the involvement of the minority.”
Unless Sinema and Manchin are living in their own dream worlds with eyes closed and ears stuffed with cotton, their positions are highly disingenuous. While debate on bills should be—and is—a bipartisan process with opportunity for the minority to express their views and even offer legislative amendments, the filibuster is not being used to debate an issue, be heard on the issue, or convince colleagues to change their votes. It is being used solely to delay, obstruct, and prevent any vote on legislation that would permit the will of the majority to prevail. As the Brennan Center for Justice succinctly put it in its October, 2020 report, “The simple threat of objection simply ends all discussion.”
Joe Manchin has very recently signaled that though he opposes elimination, he might be open to some changes. Short of total elimination, the Brennan Center has suggested three possible reforms: (1) Shifting burden to the minority (instead of requiring 60 votes to overcome filibuster, require 40 votes to sustain it); (2) Lowering the threshold number of senators to invoke cloture from 60 to something less; and (3) Requiring senators to hold the floor (a return to the talking filibuster).
Each of the three reforms has some drawbacks. A disciplined minority could overcome the burden to find 40 votes to sustain its filibuster. Lowering the 60-vote threshold would still leave the burden on the majority. And requiring a senator to hold the floor could still allow a determined minority, yielding speech on the floor only to each other, to block legislation having majority support. Still, making a senator speak would reveal to American voters the true nature of the legislative battle and the obstruction being perpetrated. This could no longer be hidden from view.
Democratic Senate Majority Leader Chuck Schumer has repeatedly said of the proposed voting rights legislation and indeed, of Congress’s entire legislative agenda, “failure is not an option.” The Senate’s Democratic caucus reportedly is engaged in serious discussion on what to do about the filibuster. Someone needs to remind the dissenters that the word “democracy,” from which the name of the Democratic Party is derived, is defined as a government ruled by the people; that is, by rule of the majority.
To the Sinemas and Manchins, I say: let the majority be the majority.
Jessie Seigel is a fiction writer, an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. She has twice received an Artist’s Fellowship from the DC Commission on the Arts and Humanities for her work. But, Seigel also had a long career as a government attorney, in which she honed her analytic skills. Of this double career, Seigel would say, “I guess my right and left brains are well balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.