Untangling the U.S. Senate filibuster: Part 2

The second of two articles examining how the US Senate has used the filibuster to obstruct the passing of legislation.
Photo credit: Eric Haynes/Creative Commons

The average citizen cares nothing for the arcane rules of senate procedure. The behind-the-scenes “sausage-making” and endless maneuvering that goes into passage of a bill is only fascinating to politicians, journalists, and Twitter addicts. Citizens just want results that impact their lives.

In[1]  Part 1, we reviewed the origin and impact of the filibuster. Today we explore possible avenues for change that could allow the Senate to begin effectively legislating big issues again.

Changing the filibuster is technically simple

Ironically, the 60-vote threshold to end debate on a bill can be revised by a simple majority vote to change the Senate rules. The filibuster has been altered in this way in the past: the threshold used to be 67 votes, and for most of its history, actual speaking was required rather than an email stating a Senator’s intent to filibuster with no long-winded speeches necessary.

However, the current Senate is composed of 50 Republicans and 50 Democrats, with Democratic Vice President Kamala Harris casting a tie-breaking vote when needed – a razor-thin majority for liberals. Not all Democrats are fully on board with altering the filibuster, but there is potentially room for discussion. President Biden’s agenda hangs in the balance.

Option one: selective elimination

While there is no current pathway to a vote to completely eliminate the filibuster, it may be possible to create an exception for extremely important bills that affect foundational democratic rights. Two bills that offer this possibility are the John Lewis Voting Rights Act and the For the People Act, which also addresses voting rights.

Within the recent past, the filibuster was dropped for approval of Federal and Supreme Court judges, as well as approving Presidential appointments, so exceptions have been made. Traditionalist Senators may be convinced to grant bill-specific exceptions, but it’s just as likely they would prefer modification instead.

Option two: modification of the Senate 60-vote threshold

Suggestions of a 55-vote threshold have been raised, although under the current partisan split it’s a moot point since even five Republicans can’t be found for any bill of significance that isn’t related to infrastructure. Democrats may gain Senate seats during the 2022 mid-term elections, but a gain of five is not expected and loss of the chamber is possible.

Option three: a return to the speaking filibuster

Perhaps it’s a valid argument that the rights of minority states should have protections, but some feel that they no longer must work hard enough to secure those rights. It’s exhausting to speak 24 hours a day until the majority gives up, all the while bringing increased attention to the very issue you are trying to bury.

But this approach still places the onus on the majority to overcome the minority’s tactics rather than the minority being held responsible for sustaining their objections to taking a vote. The final option would definitively force a large commitment from any party that decides to block legislation supported by most of the population.

Option four: vote to continue senate debate rather than end it, with “all present” voting

The current requirement to secure enough votes to end debate is easy to understand. Moving to a system that requires sufficient votes to continue debating is conceptually more difficult to comprehend, but the impact would be huge.

Given the current partisan split, a Democrat moves to end debate and must get 60 votes (60%) to do so, regardless of where Senators are located at the time – their emails of intent stand in for them.

If you flip it while also making attendance a requirement, anyone could move to continue debate and 40% (or some other percentage) of the Senators present in the chamber would have to support it or a vote on the bill could immediately occur. It’s like someone proposing a group of friends all go out to dinner instead of staying in to eat – if only a couple people want to leave the house, the proposal fails and warming of leftovers begins.

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This would mean that rather than the Democrats needing to scrounge up ten Republicans to reach the 60% threshold to stop debating, Republicans could only lose a handful of their members’ votes to keep debating. If the point is to make the minority work for their rights, this would absolutely do the trick, but only if the option to email intent is removed.

“Present in the chamber” is the key. That would mean a marathon session of sleeping on cots, not bathing, and minimal bathroom breaks so enough Senators could be present whenever a motion to keep debating is made. The minority would be subject to the whims of the majority.

Democrats could take the night off or could bring their entire caucus to the chamber whenever they want – say, 1 o’clock in the morning – to make a ‘keep debating’ motion. This would force all opposition members out of their cots and into the chamber to reach the required percentage of those present for a vote. Democrats could literally catch the Republicans napping and unable to muster enough votes to keep debating.

This would not be appealing to any minority members, but the septa- and octogenarians may take particular exception to the need to camp out in the Capital building for an extended time.

Change is coming

Political predictions are risky, but tremendous pressure is building. After an Obama administration that was largely stymied by Republican hardball tactics during the last six years of his term, Democratic voters have lost patience with liberal leaders who are overly deferential to tradition for the sake of tradition.

More filibuster options may appear if Democrats gain seats in 2022. Regardless, the era of handwringing and excuses is approaching its end. Voices from across the Left have made it clear that if Democratic leadership remains unwilling to use whatever advantage it has, no matter how slim, they will be replaced.

Part one can be found here

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