February 25, 2021 In Civil Rights (dolanlawfirm.com)
Written By: Christopher B. Dolan and Kimberly E. Levy
Jacob from San Francisco asks: What is the filibuster? Where did it come from? And how do we get rid of it?
Dear Jacob: Good questions. The filibuster is a form of political obstruction with a sordid past. Essentially, a filibuster is a procedure by which the U.S Senate minority blocks the Senate majority from voting on a bill and thereby prevents its passage. The Senate filibuster was created accidentally in 1806 when a Senate rule allowing the majority to initiate a vote on a bill was deemed to be redundant and written out of the rules. In the absence of a mechanism for ending debate and initiating a vote, use of the filibuster became possible.
As a result, in 1917 the Senate adopted a cloture rule to bring debates to a quick end. If a two-thirds Senate majority voted to end the filibuster, then the debate was closed. However, it remained exceedingly difficult to end a filibuster even with cloture — super majority support was required before a vote on any bill. Rarely able to invoke cloture, the Senate eventually reduced the cloture threshold from 2/3 votes to 3/5, which is where it stands today. To this day, the filibuster still permits a minority of senators to keep debate open in the Senate and indefinitely delay a vote; this effectively allows any legislation to be “killed” by a minority of senators who simply refuse to bring the bill to a vote, even though most bills require only a simple majority to pass.
The filibuster has been used with increasing frequency by the Senate minority to prevent passage of anything but non-controversial legislation and has been used to further institutionalized racism. Southern segregationist Senators infamously used the filibuster to prevent passage of landmark civil rights legislation including hundreds of bills to combat lynching, the 1957 Civil Rights Bill, and the 1964 Civil Rights Bill which was eventually passed regardless of the filibuster. Historically, the filibuster has been used as a tool to advance a minority agenda and proliferate systemic racism in the United States. The filibuster continues to aid in the suppression of civil rights progress to this day. In fact, the very make-up of the Senate chamber, two-senators-per-state, favors less populated states which are disproportionately white states; these less populous states have a disparate amount of power in the Senate. This disproportionate representation, combined with the requirement for a 60-vote threshold to bring a bill to vote, has stalled racial justice in the United States.
Moreover, the filibuster is not required by the Constitution, nor is it even contemplated within the Constitution. To the contrary, the filibuster undermines the system of legislature envisioned by the framers by replacing legislative decision-making based upon the will of a simple majority with the requirement to obtain a super majority in the Senate to pass legislation. Only specific acts were meant to be governed by a super majority, i.e., impeachment conviction, overriding presidential veto, ratifying treaties, etc.
In the Federalist Papers, framers James Madison and Alexander Hamilton both expressly point out that to require anything more than a simple majority to pass legislation would be to place undue power and influence with the minority. Madison states, “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.” Disproportionate power and influence from the minority, as embodied by the filibuster, was a major problem with the Articles of Confederation.
There are some ways to bypass the filibuster. Provisions of law that set time limits for debate are not subject to the 60-vote requirement to initiate a vote and are therefore unaffected by the filibuster. Such provisions include trade authority, congressional review of Presidential acts, in cases of national emergency, and when invoking war powers.
Another way around filibuster is a process called budget reconciliation. The annual budget process circumvents the 60-vote requirement with a simple majority in both the house and senate. The budget resolution is then followed by a Senate reconciliation bill which brings the budget into line with any funding amounts in annual appropriations bills by simple majority.
The filibuster may be limited or eliminated altogether by a simple majority vote to change the Senate rules. Ironically, the decision to change the Senate rules is itself subject to filibuster. The rules of the Senate do provide for a “nuclear option” which allows any Senator to challenge a rule’s Constitutionality or simply assert that the rule should not be followed. The presiding Senate officer will typically uphold the Senate rules — a ruling which may be immediately appealed and put to vote without debate requiring only a simple majority. The nuclear option has been used to eliminate the filibuster for presidential appointments.
The Senate filibuster has and continues to stymy lawmakers, preventing meaningful policy change in the United States. It is time for the legislature to be liberated from the will of the minority and eliminate the filibuster.