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The Mysterious and Twisted History of the Filibuster in American Politics

The controversial and highly contested Senate Rule 22

Synopsis

This article provides an insight into the origins of and rationale for the controversial and highly contested Senate Rule 22. Or, more commonly known as the “filibuster”. By focusing on the rule’s historical significance, it enables us to understand how the rule emerged and developed into a ubiquitously applied Senate procedure in contemporary American politics. Not only does the article aim to demystify the oft wrongly presumed understanding that it was the founders’ intentions to harbour the filibuster in the form of a constitutionally entrenched procedure, let alone a law. But, it also demonstrates that protecting “tradition” and parliamentary convention serve as a lousy argument for preserving a rule that merely aims to subvert the ability of an elected chamber to introduce nation-wide legislation aimed to bring lasting progress and change.

Secondly, this article aims to demonstrate that today’s lack of reciprocity and bi-partisanship on important policy issues places the filibuster on an even more dangerous footing. For it preserves the minority’s power to stymie the majority’s ability to introduce any form of legislation, whether concessions could be achieved or not. To prevent the continuation of this policy paralysis on both sides of the aisle, it is time to recognise the founders’ true interpretation of how they intended for Congress to operate. That starts with eliminating the filibuster.

1. Introduction

The ability to pass sweeping legislation during a U.S. presidential term in order to advance societal change and progress has been one of the most politically complex tasks for any past, current and future president. To bring lasting reform within a nation composed of 50 individual states with their own interests and priorities at stake, it can rightly be argued that for any institutional change to occur, uphill battle and political compromission should and ought to form part of the process.

But, there are distinctions to be made between those efforts that foster healthy debate and take into account the views of party opposing factions, and those, primarily procedural, efforts that deliberately stymie the very process of compromise and bi-partisanship that enable wide-scale progress and reform to occur. This article focuses on the latter, by taking a closer look at one of the most obtrusive congressional procedures pursued on both sides of the aisle to date. Namely, Senate Rule 22, or more commonly known as the “filibuster”. In particular, this article aims to identify what the filibuster does, its importance and why the call for change, especially now, cannot be ignored on either side of the aisle.

2. The way it works

The filibuster is a parliamentary rule, not a law, that requires a super-majority — 60 senators if the chamber is at full strength — for legislation to pass. Although Senate rules still require just a simple majority to actually pass a bill, several procedural steps along the way require the supermajority to end debate on bills. Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader seeks “unanimous consent”, asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a “cloture motion” (cloture coming from French Cloture, from old French Closure), which then requires 60 votes to adopt. If fewer than a supermajority of the chamber support cloture, the measure at that point becomes “filibustered”.

The rule has become far more common in the 21st century with more cloture motions having been filed in the last two decades than in the 80 years prior. The inevitable political and policy paralysis caused by the filibuster is most evident in President Joe Biden’s agenda to pass vital legislation through the Senate ranging from voting rights protection, effective vaccine rollout, criminal justice reform, and presidential ethics and accountability reforms.

Although they all have popular support, the filibuster is holding them hostage and preventing these vital reforms to pass that might otherwise have passed through a Senate majority backing. However, this anaemic legislative progress is not unique to the incumbent president and sadly forms part of the modern U.S. political process, irrespective of party and ideological affiliation. President Joe Biden has expressed some openness to addressing the complications arising out of the rule, depending on how obstructive congressional Republicans become, but it is ultimately up to the Senate to set the process in motion.

As this article will demonstrate, there are certain exceptions to the filibuster rule under the “budget reconciliation” principle and the creation of Senate precedent. President Biden’s $1.9 trillion Covid-19 relief package and its recent bi-partisan infrastructure bill demonstrate the achievements that can be made when legislation is not stymied by the filibuster. On the other hand, there are those that argue in favour of the filibuster by stating that it provides a check on the outright rule of the majority by giving minorities a voice in the legislative process.

In order to understand the competing perceptions and views of the filibuster’s efficacy I will firstly start by providing a brief overview of the rule’s origin, history and rationale before turning to a more comprehensive analysis of where the rule stands and appears to be heading.

3. Origin and history

The origins of the filibuster have often wrongly been associated with the founding fathers’ intention to include the rule as a constitutionally entrenched doctrine of U.S. constitutional procedure. On the contrary, when designing the U.S. Senate the founding fathers sought to apply lessons learned from the failed Articles of Confederation. Namely, the Confederate Articles failed due to the fact that they required a supermajority in the form of consensus amongst the existing 13 states to pass federal legislation. This obstructive threshold served essentially as a blockade in the legislative process. As a result, the founding fathers designed the U.S. Senate to be ruled by a simple majority.

The Filibuster did not come out again until decades later, after the Senate was established. In particular, since the establishment of the Union after the revolutionary war, its emergence was made possible in 1806 when the Senate, at the advice of Vice President Aaron Burr, removed from its rules a provision (formally known as the previous question motion) allowing a simple majority to force a vote on the underlying question being debated. As Reynolds states in her article “This decision was not a strategic or political one — it was a simple housekeeping matter, as the Senate was using the motion infrequently and had other motions available to it that did the same thing.”

As a result, both in the run up to and after the Civil War the filibuster became a regular feature of Senate activity. Throughout the 19th century, Senate leaders from both parties sought, but failed, to ban the filibuster, as opponents would simply filibuster the filibuster by impeding the motion to repeal the very act that was being performed. Above all, the main tradition of the filibuster was to prevent civil-rights protection for decades while African-Americans were being persecuted for trying to exercise their basic civil rights.

In 1917, as part of a debate over a proposal to arm American merchant ships as the U.S. prepared to enter World War One, the chamber adopted the first version of its cloture rule; it allowed two-thirds of all senators present and voting to end debate on “any pending measure”. Over the course of the following decades the measure has been subjected to repeated changes when, firstly in 1975, the number of votes needed to invoke cloture on legislative matters was reduced to three-fifths (or 60, if the Senate is at full strength). In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business, bringing it to the strikingly obstructionist parliamentary procedural hurdle that it is today. Therefore, attempts at reforming the filibuster have been attempted, but these have arguably only made the situation far worse.

Notably, in 1972 a reform was passed to overcome obstructionism and a “do nothing” reputation whereby the Senate was allowed to go on with business while a filibuster was in progress. What transpired is that senators now do not even need to undertake the ‘traditional’ task of talking endlessly on the chamber floor, they merely need to threaten to do so. This has resultingly made the filibuster entirely costless and, therefore, also routine. Therefore, today still, filibustering is used to “oppose popular policy reform for the sake of allowing every senator to ensure their own state gets its pet projects and pork.”

4. The Rationale

The rationale of the Rule is that it involved rousing oratory or testaments to one’s own patience with renditions of the telephone book, the Merriam-Webster dictionary, or one’s favourite cookbook. By requiring a senator to publicly hold the floor, transparency and accountability were built into the system. A senator had to publicly carry out a filibuster and carried with it spending political capital and subjecting oneself to public scrutiny for their actions. It was the Senator’s voters who decided if the filibuster was heroic or obstructionist.

A spoken filibuster inevitably came to an end because as mere mortals, humans can speak for only so long. As described above, today’s Congress depicts a very different application of the filibuster as a “silent filibuster” where debate and potential bipartisan concessions and compromission are brought to a halt due to the very fact that a Senator need only convey their intention to filibuster for legislation. Nor does he or she need to explain their reason for doing so in the first place. It goes contrary to the very nature of fostering debate and critical analysis of proposed legislation. Above all, it subjugates the very aim and ability of a democratically elected body to embrace and bring about change and progress.

5. Justifiability and Proportionality

There undoubtedly are certain wide-scale institutional changes that require stronger and more proportionate safeguards for legislative change to occur. When amending a nation’s or a state’s constitution the imposition of a supermajority vote is more than warranted due to the very effect and profound institutional impact such an amendment can bring. In New Hampshire for example, this is indeed the case for passing a constitutional amendment and to overcome a gubernatorial veto. As Hruska put it, “this elevated requirement is responsive to the magnitude of these two respective measures as compared to passing regular legislation.” Like many other nations, these types of institutional changes touch on the bedrock of the constitutional and democratic arrangement of a particular nation.

In this vein it is easy to argue the notion that exceptions to the filibuster ought to apply. Thereby demarcating the road between a patchwork of policy specific exemptions and a complete overhaul of the rule itself. However, the next section demonstrates that applying exceptions to the filibuster rule only compartmentalises it and fails to recognise that its application in today’s partisan climate counters the very efforts its proponents say the rule can achieve.

Why then does the filibuster still exist? Because, the argument goes, it has always been there and forms part of Congress’s historical procedure, and because it has endured all this time so why eliminate it now. Longevity, however, is a lousy replacement for a reason. As eluded to above, the Senate has a number of options for curtailing the use of the filibuster, including by setting a new precedent, changing the rule itself, or placing restrictions on its use.

While Democrats have some procedural options for circumventing the filibuster, the debate over whether to retain the procedure is likely to remain centre stage as legislators work to address the range of challenges facing the country. Before turning to the discussion on the rule’s repeal, I will first highlight the main exceptions that can be invoked in order to circumvent the filibuster’s application.

6. Exceptions

After the adoption of two parliamentary procedural changes in 2013 and 2017, one exception involves nominations to executive and federal judgeships, through which only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount of time for debate. Due to the specifically allotted time for debate in these cases there is no need to use cloture motions to cut them off. These form part of specifically enunciated proposals that fall outside of the filibuster’s application. But, there remains another, albeit more limited and ambiguous, avenue that Congress and the President can pursue when attempting to pass legislation. Namely, budget reconciliation.

6.1 Budget Reconciliation and the Byrd Rule

This is arguably the most widely known and consequential exception to the rule, whereby special budget rules, known as the budget reconciliation process, allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, and as a result prohibiting a filibuster.

The budget reconciliation process essentially weakens the filibuster in order to make it easier for a majority party to squeeze more of its priorities into a reconciliation bill, which then only requires a simple majority to pass. The eminence of this approach stems from the Byrd rule, which is precisely there to guard against a majority stuffing a reconciliation measure with non-budgetary provisions. The Byrd rule limits the contents of the bill and requires 60 votes to set it aside. The Byrd rule is overseen by the Senate’s non-partisan parliamentarian who plays a significant role in advising whether provisions comply or not.

As a result, some senators have proposed diluting the power of the Byrd Rule by targeting the parliamentarian as an approach to weaken the filibuster and to consequently include more priorities into a reconciliation bill. The way politics comes into play here is that the majority party could — and in the past has — select a parliamentarian who is more willing to advise weaker enforcement of the Byrd Rule. Alternatively, the senator presiding over the chamber (or the vice president, if applicable) could disregard the advice provided to him or her by the parliamentarian, thereby undercutting the efficacy of the Byrd Rule. Being physically present in the chamber to avoid an end to a debate have been some more recent and practical solutions to reducing the frequency of filibusters (see discussions among Democratic Senators, led by Senator Jeff Merkley (D-Ore.)).

6.2 Removing the Filibuster

The most straightforward way to repeal the Senate filibuster would be by either changing the wording of Senate Rule 22 itself, or repealing it altogether. However, the anticipated difficulty with this is that in order for such a procedural change to be made the Senate will require a two-thirds majority of the members present and voting to be in favour of said change. With today’s climate on Capitol Hill arguably being one of the most non-partisan in U.S. political history, it seems highly unlikely for a formal change to Rule 22 to occur, absent a large, bipartisan Senate majority standing in favour of curtailing the right to debate.

One way of going about removing the filibuster is by weakening it without eliminating it entirely. Thereby a Senate majority could ban filibusters on particular motions but otherwise leave the 60-vote rule intact. One view on this, and as argued above, would suggest that the easing out of the rule based on particular policy concerns is just a prolonged or delayed way of arguing for its repeal. However, in light of Congress’s non-partisan approach, it also seems that any willingness to remove the filibuster at all serves as a welcome place to start. For example, a Senate majority could prevent senators from filibustering the motion used to call up a bill to start (known as the motion to proceed). This would preserve senators’ rights to obstruct the bill or amendment at hand, but would eliminate the supermajority hurdle for starting debate on a legislative measure.

6.3 Creating a new Senate Precedent

The Chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways. Due to the very nature of these Rules not being entrenched codified laws or constitutional provisions, this approach to curtailing the filibuster, can in certain circumstances, be employed with the support from only a simple majority of Senators.

Colloquially known as the “nuclear option” and more formally as “reform by ruling”, it takes advantage of the fact that a new precedent, or Senate rule interpretation, can be created by a senator raising a “point of order”, or claiming that a Senate rule is being violated. A prerequisite for this is that the presiding officer, typically a member of the Senate, agrees upon which that ruling establishes a new precedent. Another Senator is able to appeal the ruling of the chair upon disagreement by the chair of the point of order. Upon a successful appeal being raised a majority of the Senate then votes to reverse the decision of the chair. When this has been achieved the Senator’s interpretation, or the opposite of the chair’s ruling, becomes the new precedent by way of a majority ruling.

As eluded to above, in 2013 and 2017, the Senate put this reform process in action when it aimed to reduce the number of necessary votes needed to end debate on nominations of federal judges. This is an example of steps being taken in the right direction by demonstrating that by following and understanding the workings of particular parliamentary procedures a simple majority, as opposed to a supermajority, of senators can establish a new rule, and thereby modify an existing interpretation of a Senate rule.

7. The other side of the coin; the filibuster as a way to mitigate political polarisation?

The other side of the debate tries to defend the benefits of the filibuster by stating that it allows a senator to invoke the need for more concessions and bring their respective constituent interests to the debate. This, the argument goes, ensures a more representative outcome when the proposed legislation does get passed. In other words, individual senators may find the filibuster useful to their own personal power and policy goals, as it allows them to take measures hostage with the hopes of securing concessions.

The preponderance of the evidence, however, goes towards demonstrating that it simply stimies legislation instead of enabling bipartisanship through encouraging concessions. Although the latter serves as a plausible argument, invoking the filibuster should be a ‘weapon of last resort’ if we lived in an era where political reciprocity and bi-partisanship were still part and parcel of policy and political decision-making. But, polarization is “empirically worse than ever.”

A Congress that is not riddled with partisan fervour and unconscionable attacks from the opposing side, would probably use sensible dialogue, debate and discussion right from the start. In this instance, the filibuster would serve as a vital and reasonable last-minute resource to invoke an appeal to bring any ideological priorities onboard that had not been discussed, or could not be agreed on, before. But instead of the filibuster serving as a vehicle for political compromise, it is rather “the entrenchment of minority party obstructionism.” For example, senator Mitch McConnel (R-Ky) protested in 2013 when Democrats abolished the filibuster for executive appointments and judicial nominees other than for the U.S. Supreme Court. Then in 2017, McConnell himself abolished the filibuster as applied to Supreme Court nominees as well. This amply demonstrates the trajectory of the filibuster and the way in which it fails to serve in the interest of preserving political reciprocity and bi-partisanship.

8. Is change on the horizon?

Senators’ views about the changing of Senate Rule 22 tend to be conflagrated and shaped by their views about policy. In essence, “there would likely need to be a specific measure that majority party senators both agreed upon and cared enough about to make banning the filibuster worth it.”

From a practical perspective, for majority party leaders the need to secure 60 votes to end debate helps them to shift blame to the minority party for inaction on issues that are popular with some, but not all, elements of their own party. Finally, senators may be concerned about the future as a result of the frequent shifts in control of the chamber and the accompanying shift in policy priorities. Concerns around the efficacy of a rule change now might come back and bite them by putting them at a disadvantage after a future election cycle.

Going forward, the filibuster still stands in the way of passing vital legislation through the Senate such as voting rights protection, gun law reform and President Biden’s more recent Infrastructure Package and Build Back Better policy initiative. Ensuring the filibuster is abolished is, therefore, essential to getting anything done outside of the filibuster’s exemptions that fosters today’s necessary societal change and policy progression.

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Ruben de Bruin

Ruben de Bruin

University of Glasgow and UCLA Law grad | Privacy and Constitutional Law focus | podcast host of “Millennicast” | Accenture London Health & Public Services | NL

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