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The Foley Institute Abolishing the filibuster

 

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Abolishing the filibuster?

Monday, May 20, 2019

Last month, Massachusetts Senator and presidential candidate Elizabeth Warren declared support for ending the Senate filibuster.  Other political figures, from fellow Democrats to President Trump, have also expressed support for eliminating the filibuster.  What is the filibuster, why do people want it changed, and would be the ramifications if were ended?

History of the filibuster

The filibuster is a practice in the U.S. Senate which allows senators to extend legislative debate for the purpose of preventing a measure being brought up for a vote.  Since no rule limits the time senators may speak, it is impossible for the majority to end debate and move to a vote when one or more senators continue talking.  The first use of a filibuster to prevent voting on a bill in the Senate was in 1837.  The House also had filibusters until 1842, when its unwieldy numbers led adoption of a rule allowing a simple majority to limit the time for debate.

In 1917, the Senate regulated filibusters by passing a rule allowing for cloture — ending debate on a measure by a two-thirds vote.  In 1975, the cloture threshold was further reduced to a three-fifths vote, or 60 of 100 senators.  Though cloture motions were intended to allow ending filibusters more easily, the number of filibusters dramatically increased after 1970, when the Senate implemented a “two-track system” for dealing with filibusters.  The two-track system allows the Senate to continue working on aspects of a measure facing filibuster instead of halting the business of the Senate entirely.  While this system provided some level of protection for legislation under discussion in the chamber, filibusters were easier for the minority to sustain as they became less of a hindrance to Senate’s business.

Defenders of the filibuster claim the rule prevents the majority from exercising unchecked power, though the Founders’ original vision was for Congress to conduct business by simple majority voting, with a few exceptions, such as impeachment charges for the president, ratification of treaties, and expelling a member from Congress.

Controversy and backlash to the filibuster

The longest filibuster on record, at over twenty-four hours, was conducted by South Carolina Senator Strom Thurmond against the Civil Rights Act of 1957.  Since the two-track system change in 1970, however, Senators are allowed to simply submit an intent to filibuster in writing without actually having to speak, making it easier to block Senate votes.  This raised concerns about filibuster being used for simple purposes of obstruction.

Frustrated by Democratic filibusters of President George W. Bush’s lower court nominations, in 2005 the Republican majority in the Senate introduced the “nuclear option,” a parliamentary procedure allowing it to bypass the three-fifths cloture rule and confirm nominees to federal district courts with simple majority support.   In 2013, frustrated by Republican filibusters, the Democratic majority invoked the nuclear option again, this time for executive branch and non-Supreme Court judicial nominees.  Finally, in 2017, with Republicans back in control, Majority Leader Mitch McConnell invoked the nuclear option for Supreme Court nominees in order to bypass minority opposition to then-Supreme Court nominee Neil Gorsuch.

In addition to these, there are a few other exceptions where the filibuster cannot be used as well—the budget reconciliation process and where the president exercises emergency powers, for instance—but most of the Senate’s business today is still subject to the possibility of filibuster.

Consequences of abolishing the filibuster

Current opposition to the filibuster comes mostly from members of the Democratic Party and legal experts who argue that it is too often used as a tool of obstruction rather than a means of moderating legislative debate.

What would happen should the filibuster be abolished entirely?  With the nuclear option invoked for executive- and judicial-branch nominations, the power to staff much of the federal government falls to the sitting president and a bare majority of Senators.  In practice, this allowed the Trump administration and Republican Senate majority to confirm increasingly conservative nominees, despite Democratic concerns about their qualifications.

Removing the filibuster for other Senate business would probably aid in passing legislation on highly divisive issues such as health care or immigration.  However, legislation passed by simple majorities is also more easily overturned in future Congresses.  Regardless of the reasons for doing so, abolishing the filibuster would transform the Senate into a more majoritarian institution, making it more efficient legislating, but less concerned with consensus building.