Keep filibuster in the Senate, but make it hurt

A voting rights bill. A federal law codifying abortion rights. A steppedup fight against climate change. All are still sitting on the shelf in the U.S. Senate, victims of a filibuster rule that requires nearly all legislation to win 60 votes in the 100-member chamber before it can even get a vote.

No wonder so many Democrats are urging Senate leaders to scale back, or even eliminate, the filibuster, which Republicans have been using to kill bills that in many cases would pass if they could make it to the floor.

President Biden’s ambitious agenda has, as a result, faltered, despite the fact that his party holds a razor-thin majority. Democrats who have been urging him to go even bigger, and further to the left, keep running into a wall. The frustration among Democrats everywhere is palpable. Last month’s decision by the U.S. Supreme Court to eliminate the federal right to abortion, just one of several examples of a newly empowered, uber-conservative court, has only upped their sense of dread.

But when it comes to carving out new exceptions to the filibuster, or eliminating it altogether, we urge caution. Scrapping the legislative guardrails would have consequences for years to come, especially if it hastened some future Republican majority’s ability to pass bills pushed by its growing extremist wing. A s we argued in January, there are simpler ways to change how the filibuster is used that will make it work better while avoiding the disastrous outcomes senators have seen before when they fooled with the filibuster. Democrats should heed lessons of the past.

Consequences

By the time Donald Trump was picking his Cabinet nominees back in January 2017, the Senate had already carved out two new exceptions to the filibuster: federal judges, including Supreme Court justices, and Cabinetlevel appointees. That meant the Senate’s 51 Republicans could approve any nominee without a single Democratic vote. It made Trump the first president in decades who could choose his Cabinet without the slightest concern for whether the pick could win bipartisan support.

Presidents Carter, Clinton and Obama all named Republicans to their Cabinets, though not in all cases in the first term. Lyndon Johnson’s CIA director, national security adviser, defense secretary, and treasury secretary were all Republicans. And Ronald Reagan and George H.W. Bush? Each put a Democrat in the Cabinet, as well.

But despite a narrowly divided Senate, Trump didn’t need to worry about sending a bipartisan note. And it showed.

The Monday before the inauguration, Sen. Ted Cruz was on a panel in Austin with his colleague Sen. John Cornyn talking about the new administration. Having apparently forgiven Trump for dubbing him “Lyin’ Ted” on the campaign trail, Cruz gushed over the names Trump had been sending over. It’s “the most conservative cabinet in decades,” he crowed.

He was right. But there was something else, too. Trump’s picks weren’t just bypassing the Senate’s scrutiny on their ideological purity but also on their competence. Surely, other presidents had bungled Cabinet picks before — Clinton’s first round is famous for missteps — but rarely had they appointed so many who were so quickly caught up in career-ending scandals. Trump’s picks for Labor, the EPA, Veterans Affairs, and Health and Human Services all resigned or were fired within roughly the first two years of his administration.

The fact that the filibuster was gone had defanged the Democrats so thoroughly that neither the president nor the Republican senators eager to show their loyalty had any reason to compromise — or even do adequate homework.

It’s a cautionary tale about what happens when a party in power has too much power.

Lifeline for the minority

The filibuster — the procedural rule that allows senators to debate a bill to death — was designed to offer a check on the majority and a lifeline for the minority, who, in the old days, had to be determined, or desperate, enough to engage in the hours-long endurance test.

It’s often been used for nefarious purposes. Civil rights bills with majority support in the Senate were stalled over and again in the middle years of the 20th century because racist Southern senators refused to give their consent long after their views had lost currency nationally. Some see parallels between those votes and the ones blocking essential reforms in today’s Senate.

But the filibuster has deep roots in our system for a reason. For most of American history until 1917, senators could keep debating a bill as long as they wanted, preventing it from going to a vote. In 1917, however, a new cloture rule meant that with 67 votes, any debate could be cut off and the bill in question sent to the floor for a vote. The procedure was rarely needed — over the next 50 years, only 37 votes to cut off debate were taken.

But as filibusters became more common, the Senate struck a compromise to make them easier to defeat: The threshold for cloture went from 67 to the current 60.

In our current moment, that’s meant a bill without at least 10 Republicans in favor won’t advance. To the Democrats who call that a travesty, we say simply: Go get more votes.

Take a page out of history and bring back the ‘talking filibuster.’

Another way forward

But there’s something else they can do in the meantime, too: Take a page out of the Senate’s history and force the return of the “talking filibuster.”

It used to be that senators who wanted to stop a bill by talking it to death had to literally keep talking long enough to wear out the opposition. If they sat down, someone would spring to their feet to declare the filibuster over and call for a vote. As Sen. Joe Manchin, D-W.Va., said last year, mounting a filibuster “ought to be painful.”

Incidentally, that’s how we still do things in Texas. Just ask Wendy Davis, the former state senator from Fort Worth who stayed on her sneakerclad feet long enough in 2013 to help run out of the clock on an anti-abortion law. She did things the hard way — which is why filibusters are rare in Texas.

But along with the change in cloture, the 1970s compromise also created what’s known as a two-track system in the Senate. When a senator threatens to filibuster a bill, that bill is set on the back burner until enough votes can be found to dislodge it. That can effectively mean forever, because while that bill is pending, the Senate moves on with other business — making a modern-day filibuster about as difficult as sending an email.

That’s what Senate Majority Leader Chuck Schumer should change. If the Republicans want to filibuster a bill, then let one of them do what Davis did: Put on their walking shoes and start talking. Let the rest of the Senate’s business pile up as the chamber’s focus — and that of the watching world — zeroes in on the filibuster. When enough senators are sufficiently frustrated, they’ll vote down the filibuster.

Just like it used to be, and just like it still is in Texas.