Tag: legislative filibuster

Founding Fathers Rejected the Filibuster

By Chase Wheaton

The legislative filibuster in the Senate is probably one of the least understood aspects of our government, especially in a historical context, but is simultaneously the most significant obstacle to tangible governance and progress that currently exists in our legislative branch. And now that Senate Democrats are being forced to pass President Biden’s American Rescue Plan through budget reconciliation so that Republicans don’t use the filibuster to stonewall COVID relief for millions of Americans during a national crisis, it’s time we have a better understanding of the thing that’s been responsible for so much gridlock in Washington over the last 50 years.

In the original iteration of the Senate, there was no such thing as a legislative filibuster, and for good reason. On its surface, the legislative filibuster might sound like a tool to allow for sufficient debate before legislation is voted on, or even as a tool to prevent a majority party from simply ramming their agenda through Congress. Upon closer inspection, however, you’d see that the legislative filibuster creates a Congress that our founders explicitly wanted to avoid when they formed our government. The existence of this filibuster essentially means that, while passing most legislation only requires a simple majority of 51 votes, ending the debate on legislation to actually vote on it requires a super-majority of 60 votes. The way our Senate currently operates, you need more votes to end debate about a piece of legislation than you do to actually pass it. The result? A seemingly endless stalemate that hurts the working-class American voter more than anyone else. 

This form of legislation is precisely what James Madison, one of the principle authors of the Constitution, warned against in The Federalist Papers, when he said that if super-majority voting requirements became routine in our legislative body, “the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” Sadly, this is exactly how the filibuster has been used more and more frequently since its inception in the early 1800s. It has allowed legislators representing a minority percentage of the country to halt legislation from being passed by the majority party, and for no other reason than because they care more about power and their own party than they do about progress and our democratic institution. And while this procedural component of the Senate may feel like an unavoidable truth of legislating to some, the wonderful truth of the matter is that it doesn’t have to be.

One of the fundamental rules of both legislative bodies of Congress is that each gets to determine its own rules and operating procedures at the start of each term. This means that, if Senate Democrats so chose, they could end the legislative filibuster and open the doors to sweeping change and progress for our country, arguably at a time in our history where it’s needed now more than ever. Now is the time for bold and progressive legislation and governance, and to fulfill the campaign promises that Biden and the rest of the Democratic party made to the American people last year, and there’s no way to do that with the filibuster in place. Even if Republicans were to retake control of the Senate in two years and use the absence of the filibuster to their own legislative advantage, at least we’d know that Senate Democrats did absolutely everything in their power to help and serve the American people during this time of widespread tragedy and devastation, rather than simply roll over and accept an otherwise avoidable fate.

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Click on Forum for a new commentary by Stephen Macaulay

Kill the Legislative Filibuster?

By Todd Lassa

Before last November’s election, Joseph R. Biden punted on the question of whether he supports killing the Senate legislative filibuster. It’s a move Senate Democrats have been considering at least since it won a majority by the slimmest of margins, with Vice President Harris the tie-breaker for when legislation is split down party lines 

The issue is not the first priority with Senate Democrats, who are moving President Biden’s $1.9-trillion coronavirus relief package via the arcane reconciliation process, which requires a simple majority vote rather than the 60 votes – including 10 Republican senators – necessary when the potential of a filibuster is involved. 

The question is, how much legislation can Biden’s Democratic allies in the Senate pass in the next two years without eliminating the legislative filibuster, which means most bills will require those 10 Republican votes? After January 2023, Democrats either will lose their wafer-thin Senate majority, or will build on it, though it is unlikely either party will gain at least 10 senators in the November 8, 2022 mid-terms. 

Filibuster reformation seems to come up every four years with the presidential election, if not every two years. 

In 2013, then-Senate Majority Leader Harry Reid, D-NV, rallied Democrats to end the filibuster for federal judicial nominees and executive office appointments. Spiking the filibuster, called “the nuclear option,” requires only a simple majority vote. 

Republicans warned that triggering the nuclear option on appointing federal judges would come back to bite Democrats whenever they inevitably lost the Senate majority. 

And they were right. In 2017, then-Senate Majority Leader Mitch McConnell, R-KY, led a majority of his party to end the judicial filibuster for U.S. Supreme Court nominees, paving the way for President Trump’s nomination of Neil Gorsuch as replacement for the late Justice Antonin Scalia. Adding hard-core partisanship to injury, Gorsuch’s Senate approval came the year after McConnell prevented a vote on Obama’s nominee late in his term to replace Scalia, Merrick Garland, who now is Biden’s nominee for attorney general.

In the end, Trump saw his three Supreme Court associate justice nominees get Senate approval in his four years in office, compared with Obama’s two associate justices in eight years. 

The question for Democratic senators now is, how much more of Biden’s agenda could the Senate pass in the next 23 months if just 51 votes were needed? And would it be worth weathering the inevitable Senate and White House flip somewhere off in the future?

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Click on Forum for a new commentary by Stephen Macaulay
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Not Carthage, But Important

By Stephen Macaulay

On January 26, Senate Minority Leader Mitch McConnell (R-KY) tweeted, "I made clear that if Democrats ever attack the key Senate rules, it would drain the consent and comity out of the institution. A scorched-earth Senate would hardly be able to function." 

He was talking about the filibuster. The Senate cloture rule calls for a supermajority, or 60 votes, to cut off debate. The Democrats, who hold a simple majority, would prefer that is all that is required to end debate; odds are, with Vice President Harris as president of the Senate, they would end all debate on subjects and get right to the voting, which they would again, as bill passage depends on a simple majority, come away as victors.

While “scorched-earth” may be a bit of an exaggeration — after all, we’re not talking the Third Punic War here and the salting of the ground upon which Carthage once stood — but a point of trying to uphold what the Senate should be about: being a deliberative body (it would be hard to put “greatest” in front of that term). To deliberate means to debate. To debate, when done properly, means to have an exchange of ideas, of opposing viewpoints.

In one regard it is somewhat ironic that I open with a tweet from McConnell in that it seems too many political issues are now being dealt with in 280 characters, rather than with an open, fulsome, spirited debate.

The Senate structure, as you know, is one where each state has equal representation. (The House, of course, has a structure predicated on population.) The point of the way the Senate is put together is to protect, in effect, the minority, meaning that California and New York can’t step on Wyoming and Vermont.

The Senate cloture rule does the same thing by requiring that there be two thirds, not one half, of the body in agreement that debate ends.

Of course, there’s the question of whether this is too high a bar, if getting cloture is some sort of impossibility. Perhaps that was once the case (or Senators just tended to be more loquacious back in the proverbial day) because from 1917 to 1968 cloture was invoked just eight times.

In 2019-2020 it was invoked 270 times (a record).

There is a feeling that we “must get things done.” A bunch of droning Senators doesn’t seem to be the way that can or will happen.

But McConnell does have a point, with the point being that before important things get done there needs to be sufficient support — by both sides — for its execution to have the positive effects anticipated by its existence.

To simply have a situation that says, in effect, “OK. We’ve had enough. Go back to your desk and put your head down,” isn’t going to be particularly beneficial.

This is not to argue that McConnell is an exemplary politician. He has proven himself over the years to be more of a tactician, a man who makes moves to benefit his, and his party’s, interests.

But there is something to be said for the ability of the minority to be heard in a fulsome manner.

And McConnell ought to know that Senate Majority Leader Chuck Schumer (D-NY) is far from being Cato.

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Click on Forum for new commentary by Stephen Macaulay

Will Trump’s Impeachment Trial be a Waste of Time?

By Todd Lassa

Contrasting with the flurry of more than 30 executive orders being signed by President Biden in the last few days and his cabinet picks working their way through the Senate at a rapid pace, things aren't going as well between newly promoted Senate Majority Leader Chuck Schumer, D-NY, and similarly demoted Minority Leader Mitch McConnell, R-KY, and his caucus on how, when and even if to conduct the trial of former President Trump. It appeared the Senate was headed for Trump-style deal-making that would have pit Senate Democrats’ effort to kill the legislative veto and give their 50-plus-Vice President Harris-majority more teeth against Senate Republicans’ wish to delay Trump’s impeachment trial, if not to spike it indefinitely. 

Schumer has since agreed to delay Trump’s impeachment trial to the week of February 8. McConnell on Monday night gave in to Schumer’s demands for a vote to rescind the legislative filibuster that forces a 60-vote majority to pass bills, in exchange for an agreement on Senate organization. But the deal may prove empty if two centrist Democrats, Krystin Sinema of Arizona and Joe Manchin of West Virginia honor their promise to vote with Republicans and retain the filibuster.

In the middle of all this, various news outlets, regardless of alleged political leanings, reported either a.) there are nowhere near the 17 Republican Senate votes needed to accompany an assumed unanimous Democratic vote in order to reach the 2/3-majority necessary to convict; or b.) a sufficient number of Republican senators have privately, anonymously committed to help Democrats reach the 67 votes necessary. 

The least Democrats can count on for now is that Sen. Mitt Romney, R-UT, appears ready and willing to vote for conviction. The editorial We might assume Schumer is also counting on Republicans Lisa Murkowski, of Alaska, Susan Collins, of Maine and Ben Sasse, of Nebraska. Throw in possibly Sen. Rob Portman, R-OH, who has just announced he will retire after three terms, and fellow 2022 retiring Republican Sens. Pat Toomey of Pennsylvania and Richard Burr of North Carolina, perhaps add in McConnell, who has already said he will not whip the Republican caucus on how to vote, count on all Democrats including two independents who caucus with them, and you may be up to 58 votes to convict, nine short of the number necessary to convict. 

Some Republicans who have joined the anti-Trump and never-Trump unofficial sub-caucus and Democrats hope that a Trump conviction will be followed by a vote on whether to ban the former president from ever running for federal office again, which may only require a 51-vote majority depending on the rules set forth for the impeachment trial. 

Because the week of February 8 will mark the first-ever impeachment trial of a former president, Chief Justice John Roberts will not preside. Instead, that honor goes to President pro-tem Patrick Leahy, Democrat from Vermont.

What should happen? What will happen in this historic anomaly? Pundit-at-large Stephen Macaulay tackles those questions for the left column, and contributing pundit Bryan Williams considers the questions on the right.

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Click on News & Notes for details of the impeachment article against former President Trump