*Note: This article was republished with the permission of the author and originally published in the Newsletter for the Concerned Citizens of Laguna Woods Village, written April 15, 2021.
Author: Jonathan R. Adler, Elected Member to the Democratic Party of Orange County, Legislative Action Chair of Concerned Citizens of Laguna Woods Village and Laguna Woods Democratic Club.
Common wisdom is that if the Senate fails to repeal or reform its “Cloture” rule requiring 60 votes to stop a filibuster and end debate, Sen. McConnell and his caucus will block all significant Democratic bills (but for a few that are budget-related and need just a majority in “Reconciliation”). If so, most big problems will persist. A filibuster excuse won’t cut it, so gridlock also may well hand the GOP control of Congress in 2022 and the White House in 2024.
With such dire effects, why do Senators Manchin, Sinema, likely Leahy, and maybe Feinstein cling to the filibuster? Just a minority of their voters favor it. And the more the GOP blocks popular bills – like the big pro-democracy H.R.1/S.1 (“For the People Act”); H.R.4 to revive the Voting Rights Act to stop voter suppression; $15/hour minimum wage; giant infrastructure investment; etc. – the more voters will oppose the filibuster.
It may surprise you to read this, but we can’t end filibusters – not classic filibusters at least – because they no longer even exist and haven’t since 1970. “Classic filibusters” mean old-time actual stand-and-talk-‘til-you-drop, Jimmy Stewart, “Mr. Smith Goes to Washington” filibusters. In their place since 1970 are “Kabuki-theatre filibusters,” truly minority-rule-by-veto. Taking the Floor to talk isn’t even needed. The Minority Leader just tells the Majority Leader he’ll need 60 votes to proceed on a bill – “pseudo-filibuster.” How did that happen?
Filibusters 1787 to today
Didn’t the Constitution allow filibusters? At least unlimited Senate debate? Isn’t the filibuster as old as the nation? Or with precedent over two centuries? Unchanged since 1900? With “no racial history at all; none; no dispute among historians” (as McConnell just claimed March 23)? Used regularly over the last 100 years?
The answer to all those questions is a clear “NO”! Not only did the Constitution not mention filibusters, nor unlimited Senate debate – it lets “Each House … determine the rules of its proceedings” (Art. I, sec. 5) and change rules, of course – the Founders firmly favored majority rule on all things over any minority veto or super-majority required to enact laws. Jefferson wrote, “It is my principle that the will of the majority should always prevail.” Franklin stated that a system where “the minority overpowers the majority” is “contrary to the Common Practice … in all Countries and Ages.” And Hamilton wrote that requiring a supermajority “substitute[s] the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
Filibuster usage over history is not reported in official records and can’t be quantified well, since no “bright line” separates very long speeches arguing issues from endless talk mainly to delay. What is specific, officially recorded, and quantified are Cloture motions to end debate and/or to break filibusters, as a proxy to quantify filibusters. Until the 1900s, Senate Cloture procedure varied. What were later called filibusters were rare – likely due to senators’ courtesy, respect for debate rules, and lack of chutzpah. An exception in the 1840s was Sen. John C. Calhoun, South Carolina Democrat, a filibuster “pioneer” who used long speeches to try to stall bills harmful to Southerners’ slavery and other economic interests. Other Southerners spoke endlessly to stall civil rights bills in 1891, 1954, and 1964. So much for McConnell’s claim that filibusters “have no racial history.”
Senate rules codified Cloture procedure in 1917, but later fluctuated as to both how to count votes – as a number of all sitting senators, to just those “present and voting,” and back again – and as to percent required – from 2/3 down to 60 senators. Today’s “Kabuki filibuster” rule was passed in 1970 to let the Senate do other business during all “filibusters”, thus making pseudo-filibusters easier and removing deterrents to them.
Explosion of 60-vote demands after 1970
Cloture data show how filibusters exploded after 1970, especially since 2000, as politics got negatively hyper-partisan, polarized, and intended to block opponents’ successes (above national interests). From 1917 to 1970, Cloture motions and votes averaged under one per year. Strom Thurmond (D-S.C.) filibustered the Civil Rights Act of 1957 for over 24 hours; other Southern Dems did so, too. After 1927, the next successful Cloture vote broke Southern Dems’ 74-day filibuster of the 1964 Civil Rights Act.
Cloture motions after 1970 to try to meet GOP demands for 60 votes shattered records during the Carter, Clinton, and Obama presidencies. Such motions exploded to about 40 per year under Carter, about 90 per year under Clinton, over 250 per year in Obama’s first term – as McConnell tried to fulfill his vow to “make Obama a one-term president” – and close to 350 per year in Obama’s second term. McConnell demanded 60 votes on most bills, even insignificant ones.
The post-1970 60-vote “Kabuki filibusters” deepen four other governmental structures of minority rule – fueled and turbo-charged by two centuries of demographic shifts, recent 5-4 Supreme Court rulings, and rising negative ultra-partisanship. Two such minority-rule structures passed the Constitutional Convention in 1787: The Electoral College, and equal Senate voting power of small and big states. A third is sophisticated gerrymandering of the House and state legislatures that gerrymander the House. A fourth is increasingly brazen voter suppression.
In a pseudo-filibuster, 41 senators – Hamilton’s “insignificant … or corrupt junto” – can veto bills strongly favored by up to 59 colleagues and the public and dictate what they let pass. The smallest 21 states have 42 senators and total 35.6 million people (in the 2010 Census). California alone had 1.6 million more people and of course just 2 senators. Of those 21 smallest states, 11 are “red” (2 GOP senators each), 3 are “purple” (1 GOP senator each) and 7 are “blue” (2 Dems each).
Gerrymandering after the 2010 Census gave the GOP 22 more House seats in 11 states (legislatures of 10 in full GOP control) than their percent of total votes for Congress in 2016 warranted. In 2019, the Supreme Court held, by 5-4, no federal court could hear a partisan-gerrymander case. In 2013, the Court struck down, also 5-4, a key part of the Voting Rights Act; within hours, Southern states began reinstating voter-suppression laws that grew more brazen each year.
Pro-filibuster reasons’ “sell-by date” expired long ago
One gauzy rationale for the filibuster is that it compels opposing parties to work together “in good faith” for compromise. It is doubtful that a filibuster ever did that, but if so, a filibuster hasn’t done that for decades.
Another reason that had been used to keep the filibuster is that parties alternate Senate control; so, any party that ends the filibuster – entirely, or for some types of issues – might find itself in need of it when Senate control flips. A few factors dissolved that rationale long ago, including:
- McConnell triggered the “nuclear option” himself to ban Supreme Court confirmation filibusters when it fit his goal.
- His stonewalling Merrick Garland to confirm President Trump’s nominee Neil Gorsuch, versus rushing to confirm Amy Coney Barrett days before the last election, and many other flip-flops, show McConnell’s tenuous and hypocritical relationship to “principles,” claimed “precedent,” consistency, and truth. He wouldn’t need Democrats’ ending filibusters to do so himself if it served his purposes.
- In general, when Democrats control Congress, they try to enact big, bold, new programs; when the GOP is in control, they try to repeal those programs.
- Democrats’ political prospects are such that if they let the minority’s veto/pseudo-filibuster stay as is, they’ll pass few significant bills, thus be far more likely to lose control of Congress; but if they end or greatly reform the pseudo-filibuster, they’ll be able to pass many more big, bold, popular initiatives that help solve great problems, thus be far more likely to keep control of Congress and not need a filibuster for the foreseeable future.
Ending the pseudo-filibuster isn’t the Democrats’ only option. Many kinds of reforms are being proposed: One is to “carve out” issue areas that need only a majority vote, such as voting rights, election protection, and basic democracy issues – to add to the dozen or so already existing, including confirming Executive Branch political officers, district court and court of appeals judges and Supreme Court justices, budget Reconciliation, National Emergencies Act issues, War Powers Resolutions, Trade Promotion Authority, Congressional Review Act, etc.
Another proposal is to return to true “stand-and-talk” filibusters, so voters can see, hear, and judge Cloture opponents. Shifting the burden of voting to Cloture opponents; changing how votes are tallied – from a fixed number of senators to a percent of those “present and voting”; and raising that percent needed to stop Cloture day-by-day as a filibuster continues, are other proposals short of ending pseudo-filibusters outright.
In any event, minority-rule-by-veto is no longer tolerable.