The filibuster was never meant to create minority rule. It’s time to stop it from blocking the will of the majority.
The filibuster dates to 1789 and the tactic of senators engaging in long speeches to delay votes. (Think Jimmy Stewart in “Mr. Smith Goes to Washington.“) Today, senators do not have to take to the floor and literally talk for hours to stop a bill from being voted on. As things now stand, one senator can filibuster by simply objecting to the majority leader’s call for “unanimous consent” to end debate, which stops the legislation in question from being voted on.
The filibuster is not part of the Constitution, which is clearly majoritarian in its design. It is a Senate procedural device (found in Senate Rule 22) which has evolved to require 60 votes to overcome it, and two thirds of the members present to repeal it, which is never going to happen. It can, however, be reformed.
The need for filibuster reform is best understood in the context of the hyperpartisan, tribal political environment we are living in, and the recently passed, and signed into law, American Recovery Plan Act of 2021 (COVID Relief Bill). COVID-19 has ravaged our country and economy. The COVID Relief Bill addresses this devastation. The legislation is supported by 76 percent of Americans, including 60 percent of Republicans. Nevertheless, not one Republican in either the House or Senate voted for it. The only reason this bill became law was because of reconciliation, another Senate procedural device that allows for majority rule by avoiding the filibuster.
Reconciliation was created under the Congressional Budget Act of 1974. It allows a simple majority to pass laws relating to taxes and spending once per fiscal year. It has been used by both Democrats and Republicans over the years. The Trump and George W. Bush administrations used it to cut taxes. Under Obama and Clinton, it was used respectively to pass parts of the Affordable Care Act and to raise taxes. It cannot, however, be used to pass legislation like H.R. 1, the “For the People Act,” which passed the House by majority vote and faces destruction by the filibuster in the Senate.
H.R. 1 would protect voting rights from state Republican voter suppression laws by expanding access to the polls, requiring states to offer mail-in ballots, same day voter registration, and a minimum of 15 days of early voting. If the COVID Relief bill couldn’t get any bipartisan support, it’s naive to think HR 1 can, without filibuster reform to first pass the Senate.
The “For the People Act” could avoid the filibuster if the Democrats invoke what is colloquially referred to as the “nuclear option.” This is yet another procedural device that avoids the filibuster by creating a new Senate precedent. In 2013 the Democrats used the “nuclear option” to eliminate the filibuster for federal executive branch appointees and judicial appointments, other than the Supreme Court. In 2017 Republicans used it for Supreme Court nominees. The Democrats should use it to enact the “For the People Act” regardless of the fact that the precedent could be used by the Republicans should they regain majority control of the Senate.
In addition to employing the “nuclear option” to protect voting rights, the Democrats should ensure the filibuster reverts to its original form where senators have to stand on the floor of the Senate and talk and argue for a length of time, or give up their filibustering. Such would not only impose a cost for filibustering, it would draw public attention to what is being opposed and why the senator is against it.
In past articles, I have argued that we are in the midst of a modern civil war. I believe the January 6 insurrection proves the point. Republican legislators are combatants in this war. They have made it clear that they see both state voter suppression and the filibuster as weapons in that war. The Democrats have to respond; too much is at stake. Democratic Congressional majorities are razor thin. The 2022 midterms are rapidly approaching. Voters expect the Democrats to deliver on their campaign promises. This cannot be done as long as the filibuster is left intact.
Make your opinions known; they make a difference. Call senators at (202) 224-3121. Call the White House at (202) 456-1111.