This ‘accidental’ procedural tactic needs to go
It began as an accident, morphed into a parliamentary tool extensively used to block civil rights legislation, and today has grown into a partisan gambit threatening to obstruct democracy reforms and, for that matter, the entire policy agenda of the new Biden administration. It is called the filibuster.
There is nothing in the U.S. Constitution that provides for the filibuster. In fact, it is anathema to what the founders envisioned for the legislative process. Noting the standstill of the legislative process under the supermajority vote requirements of the Articles of Confederation, the founders wrote a new Constitution fundamentally based on majority rule. Alexander Hamilton wrote in Federalist 22: “If a pertinacious minority can control the opinion of a
majority … (the government’s) situation must always savor of weakness, sometimes border upon anarchy.”
Instead, the filibuster came into existence very much unwittingly and by mistake. Both the House and Senate rule books included the “previous question” motion, which allowed each body to cut off debate by a simple majority. In 1805, Vice President Aaron Burr, recently indicted for the murder of Alexander Hamilton, presided over the Senate and argued that the “previous question” motion was superfluous, and so the Senate deleted it from the rulebook. No one contemplated that the deleted “previous question” motion could empower a senator to keep the floor indefinitely and prevent a vote on a motion until decades later, with the first filibuster in 1837.
Back then, the filibuster was a “talking filibuster” in which senators had to stand on the floor and talk ’til they dropped. It really was not used often before the Civil War. The filibuster eventually did become a nuisance to the legislative process, so the Senate adopted a compromise reform to cut off debate by a supermajority vote in 1917, known as the “cloture” rule (Senate Rule 22).
Today, the filibuster has become a routine tool to derail a majority party’s legislative agenda. Filibusters now are managed more like a poll of the Senate. If Senate leaders know that at least 41 senators would oppose a cloture motion on any legislative measure, that measure usually will not be scheduled for floor consideration. The startling frequency of such informal filibusters today can be measured by the number of cloture motions, which have gone from one or two cloture motions per session before the 1960s to 150 to 250 cloture motions today.
Following the tidal wave of scandals and corruption and efforts to suppress voting rights over the last four years, and in recognition of longstanding issues with our democracy, congressional Democrats have put together a massive legislative package to strengthen our system. The For the People Act would establish automatic voter registration, make voting by mail and early voting easy, ban gerrymandering and enhance election security. The legislation would enhance transparency of money in politics and replace the corrupting system of special interest financing of elections with a small-donor matching program to reduce the role of Big Money in elections. It would strengthen governmental ethics by applying the conflict-of-interest rules all the way up the government hierarchy, including the president and vice president, and empower the Office of Government Ethics to enforce these rules, and much more. In short, the For the People Act is the cure to the ills of government for which we have all been waiting.
But the dysfunction caused by the filibuster could strangle much of the Democratic majority legislative agenda in the 117th Congress. And Senate Minority Leader Mitch McConnell has signaled that he will filibuster these democracy reforms to the death.
The filibuster, as it currently stands, is the single greatest obstacle to protecting us from voting access attacks happening at the state level, restoring election integrity and reining in special interest control over our government. This is reason enough to end the filibuster as we know it. There are a number of different steps that could be taken, from restoring the talking filibuster to exempting democracy reforms from the filibuster or, better yet, casting this accidental parliamentary mistake back into the dustbin from which it crawled.
As the 2020 elections demonstrate, the American people of all partisan persuasions are tired of the congressional gridlock and the scandals and corruption that have come to define Washington. Americans want sweeping change. It is what we voted for. Let’s not allow a parliamentary gimmick to block desperately needed democracy reforms and leaving us forever stranded in a legislative quagmire.