WASHINGTON (WETM) – Congress continues to be wrapped up in debates and delays even as the Senate came to an agreement to temporarily resolve the debt ceiling crisis through December.
As the threat of an unprecedented U.S. default approached, President Biden said on October 6 that eliminating the filibuster altogether is “a real possibility”. This comes as a surprise change in his opinion, as he’s resisted several filibuster rule changes in the past.
The filibuster is not in the Consitution, so what is it, how does it work, and is it even democratic?
What is the filibuster?
Simply put, a filibuster is a tactic to keep up unlimited debate over a bill in the Senate and to delay any action on that bill.
How does a senator do this? By talking. A lot. Or at least, they used to.
The filibuster is among the Senate’s “most distinctive procedural features,” according to the Congressional Research Service.
The Senate has a longstanding practice of allowing any one senator to object to the proceedings that can halt action or votes.
Dan Lamb, a lecturer at the Cornell Institute of Public Affairs said the filibuster “relates to debate that can go on for long periods of time in the Senate.”
Historically, images come to mind of lone senators standing on the chamber floor, giving a speech for hours on end just to delay a vote.
In Frank Capra’s 1939 film “Mr. Smith Goes to Washington”, Jimmy Stewart famously played a senator who spoke non-stop until exhaustion.
More recently, the NBC sitcom “Parks and Recreation” featured an episode in which Patton Oswalt improvised a nearly-8-minute filibuster to prevent a city council vote.
But in real life, South Carolina Senator Strom Thurmond talked continuously for over 24 hours to stall the 1957 Civil Rights Act.
But today, Senators rarely actually end up speaking for hours and hours. Instead, a mere threat of a lengthy speech is enough to make Senate leaders take action, usually to either drop the issue from floor consideration or push ahead to take cumbersome steps to cut off the filibuster.
The impact of the threat usually flows not from delaying Senate business but from the need to get a supermajority of votes to halt them.
But why the change from lengthy speeches to simple threats?
“I think members of the United States Senate realize that this was an effective way to get their way,” Lamb said. “And we’ve seen a breakdown of norms in the United States Senate where members are willing to play hardball and use… a really arcane role in a way that it was never intended to be used to extract concessions from the other side.”
“I think it has to do a lot with the bare-knuckle aspect of our politics today. And this win at any cost mentality and never concede, never give an inch and use every tool at your disposal to make your side win. And it’s rendering the Senate, you know, ineffective right now, and moving really important legislation. We should not be fooling around with raising the debt ceiling… This is not a time for political games.”
How do you end a filibuster?
Lamb said that while the filibuster is important, what we’re seeing more focus on now is the “cloture rule”. That’s the rule that describes how you can stop this perpetual debate.
The Senate has to vote to stop a debate and advance to a vote on the legislation.
In the early 20th century, as the use of the filibuster started to grow and the Senate got frustrated, Senators voted to allow a two-thirds vote to end a filibuster.
But that kind of majority was hard to come by, so in 1975, that threshold was lowered to a three-fifths majority, or 60 votes.
In the 1970s, in order to prevent a filibuster from bringing the entire Senate to a halt, leaders allowed for legislation facing a filibuster to be put aside while the Senate worked on other bills.
As Susan Cornwell from Reuters explains, “The move was intended to prevent opposition to a single bill bringing all work in the chamber to halt, but it also meant that the filibuster changed from an energy-draining maneuver involving lengthy speeches to a mere objection, or threat to object.
Where did the filibuster come from?
Lamb says the filiubster came about in 1805 when a rule change to Senate proceedings “that allowed discussion to occur indefinitely, rather than being shut down by a simple majority vote.”
For more clarity, the Brookings Institution explains that in 1806, at the advice of Vice President Aaron Burr, the Senate removed a provision that allowed a simple majority (today, 51 votes) to force a vote on legislation and skip the debate.
After that, filibusters started to become commonplace and the Senate finally tried to take a preventative measure with the two-thirds vote threshold in 1917 when there was debate over arming merchant ships as the U.S. was entering World War I.
Why is this a problem in the Senate right now?
Democrats have razor-thin control of the Senate right now. It’s 50-50, so their majority only comes with Vice President Kamala Harris’ tie-breaking vote.
In order to end any filibusters, Democrats need 10 Republicans on their side to reach those 60 votes.
They got the votes to support the $1 trillion infrastructure bill back in August, but Republicans have since blocked many Democratic agendas.
The Senate came to an agreement on October 7 to raise the debt ceiling by almost half a trillion dollars and extend the government’s borrowing authority into December.
“We don’t know where this is going,” Lamb said. “We could be having this debate again in December, where we have another discussion on whether there’s going to be the cloture rule reform.”
With everything that will have to be passed in the near future, including the infrastructure bill, the spending bill, the debt ceiling raised and more, Lamb said, “it’s gonna be a pretty busy month.”
What if we got rid of the filibuster?
Congress actually has eliminated the filibuster once before.
In 1888, the House of Representatives—not the Senate—Republicans had control of the House, but only narrowly. This meant that Democrats could stop Republicans’ plans pretty much whenever they wanted to by using the filibuster.
House Speaker Thomas Brackett Reed, as The Atlantic explains, was able to change the rules of the House roll-call procedure and eliminate the filibuster. Ultimately, this meant that the majority party in the House actually accomplished several things on its agenda without lengthy or exhausting holdups from a minority party.
More recently, there have already been more changes to the filibuster, so that today, it’s only allowed for legislation. In 2013, through a process called the ‘nuclear option’, the Democrats in the Senate removed the 60-vote rule when it came to confirming Presidential administration nominations, allowing a simple majority (51 votes) to be enough.
And in 2017, Republicans used the nuclear option again to remove the 60-vote threshold for Supreme Court nominations.
So Lamb thinks it’s more likely that the filibuster could be changed rather than completely erased.
“It’s not beyond precedent to adjust the cloture rule. And I think the American people are seeing an example right now of a change that probably should occur on this matter.” He emphasized that the cloture rule—the 60 votes rule—is what would likely change, not the filibuster itself.
Back to the ‘talking’ filibuster?
Biden supports a return to the “old days,” as he put it, of the talking filibuster, forcing senators to stand at their desks and articulate their opposition to the proceedings, as was the practice when he first joined the Senate decades ago.
“You’ve got to work for the filibuster,” he said.
The idea has support from Democrats who see it as a possible alternative to fully ending the filibuster practice. But it still poses risks, and Democratic leaders have been reluctant to move toward that option.
Several Republican senators, particularly those considering running for president in 2024, might see political advantage to seizing the floor to rail endlessly against White House priorities. The filibusters could also stall action on other Democratic priorities, including Biden’s nominees.
McConnell has warned of a “scorched earth” reaction if Democrats eliminate the filibuster.
At the same time, many Democrats are ready to take that chance to end the filibuster, realizing their slim majority is fragile, and Republicans might do away with it anyway to advance their priorities the next time they control the Senate and the White House.
Does the filibuster counteract democracy?
If the party that lost an election and is in the minority can stop the winning party—which was voted in by the American people—from doing pretty much anything, is that fair to the voters?
Lamb said it doesn’t really seem democratic when you really look at it, and his students think so, too.
“For the everyday person, that’s pretty distressing,” says Lamb. “You wonder, ‘why can’t this get fixed? Why is a very vocal and adamant minority in the United States achieving these sorts of legislative… victories, if you call stalemates of gridlock victories.”
Another reason Lamb says it might not seem totally democratic is that very small states have the same amount of representation in the Senate as very big states, so their “impacting outsized influence on floor proceedings.”
“It might have been one of those sleepy senate roles that, you know, we didn’t pay a lot of attention to until it got misused on such a grand scale. And that’s what we’ve seen in the last 20 years where it’s just been used to grind the activity of the United States Senate to a halt.”
Lamb doesn’t think supermajority votes are necessary because in other elections around the county we use simple majorities or even pluralities to elect a winner. “Why is it that we can’t deal with so many legislative issues in the United States Senate, absent a supermajority?”
At the end of the day, Lamb said it comes down to the American people.
“Like so many things, we’ve gotten to a point of political hardball and everything extracts some sort of price.”
He added that the United States is at a point of political polarization not seen since, probably, the Civil War.
“At some point, you have to act and stop playing this brinksmanship game,” he said. “These these political games have real-life repercussions.”