Senate Filibuster

Contents
In the News
  • Targeting State Restrictions, House Passes Landmark Voting Rights Expansion, NYT March 4
    • But the measure, which is supported by President Biden, appears to be doomed for now in the Senate, where Republican opposition would make it all but impossible to draw the 60 votes needed to advance. Democratic leaders have vowed to put it up for a vote anyway, and progressives were already plotting to use Republican obstruction of the bill to build their case for jettisoning the legislative filibuster in the months ahead.
  • House Passes $1.9 Trillion Stimulus as Democrats Work to Salvage Wage Raise, NYT February 26
    • While it included a marquee progressive proposal to raise the federal minimum wage to $15 per hour by 2025, that measure has been ruled out of order by a top Senate official who said that it did not qualify under the strict budgetary rules governing reconciliation bills. Senate Democrats were exploring alternatives that would allow them to maintain a version of the wage increase in the stimulus package without imperiling the broader plan.
  • Policing, guns, voting rights: Historic Democratic goals hit Senate skids Politico March 4
    • The Senate backlog will grow over the next two weeks as Speaker Nancy Pelosi tees up votes on bills to expand voting rights, enact universal background checks for gun purchases and protect so-called Dreamers.
Filibuster and Getting Things Done
  • The Senate filibuster has morphed into a norm requiring a supermajority of 60 votes to pass legislation or approve nominations.
  • Things get done by:
    • Overcoming the Filibuster
      • Cloture
        • Cloture is a parliamentary procedure for ending debate and proceeding to a vote.
        • But cloture in the Senate requires 60 votes.
    • Bypassing the Filibuster
      • Unanimous Consent
        • A vote can be taken if senators agree to holding the vote.
        • But it must be every senator.
      • Budget Reconciliation
        • A budget reconciliation bill requires only a simple majority.
        • But the bill must satisfy strict budgetary constraints.
      • Executive Action
        • A president can issue an executive order, bypassing the Senate.
        • But many things can be done only by Congress.
        • And later presidents can undo executive actions.
    • Changing the Filibuster
      • The Senate can nuke or limit the filibuster by a simple majority.
      • But …
Filibuster Timeline
  • 1789 A simple majority was required to pass legislation in the Senate.
    • Constitution, Article 1, Section 5
      • “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
  • 1806 A side effect of a rule change, urged by VP Aaron Burr, made filibusters theoretically possible.
  • 1837 The filibuster was first used in the Senate.
  • 1917 The Senate adopted Rule 22, establishing cloture by a two-thirds vote.
    • Cloture is a parliamentary procedure for ending debate and proceeding to a vote.
  • 1970 The Senate adopted a two-track system that enabled having more than one piece of legislation or nomination pending on the floor simultaneously. 
    • Filibusters no longer brought the Senate to a complete halt. 
    • The number of filibusters increased dramatically.
  • 1974 The Congressional Budget and Impoundment Control Act created budget reconciliation, an optional process, requiring only a simple majority, to let Congress clean up its spending plans so they matched the budget.
  • 1975 The Senate revised its cloture rule so that 60 senators could end debate.
  • 1990 The Budget Act imposed strict conditions on budget reconciliation bills to prevent bypassing the filibuster using fake reconciliation bills. The constrains are known as the Byrd Rule, after Senator Robert Byrd.
    • Every provision of the bill must produce a change in outlays or revenues, and not in a “merely incidental” way.
    • The bill cannot increase the deficit beyond the budget window, usually10 years
    • The bill cannot change Social Security. 
    • A senator can challenge any provision of a budget reconciliation bill for violating these rules. The Senate parliamentarian rules on the provision in question, which is struck from the bill if deemed extraneous. (The struck provision is called a “Byrd dropping.”) The Senate can vote to override the parliamentarian’s ruling.
  • 2013 Harry Reid used the nuclear option to allow presidential nominees, except Supreme Court justices, to be approved by a simple majority
  • 2017 Mitch McConnell used the nuclear option to allow Supreme Court justices to be approved by a simple majority.
A Parliamentarian‘s Ruling
  • A provision in the Democrats’ 2021 Covid $1.9 trillion stimulus package increased the minimum wage to $15 an hour.
  • The Senate parliamentarian ruled that the provision failed to satisfy the Byrd Rule.
  • Democrats’ options:
    • Eliminate the provision from the bill.
    • Modify the provision so it passes muster.
      • For example, by replacing the provision with one that mandates tax penalties for corporations that pay less than $15 an hour.
    • Move the minimum wage increase to a separate non-reconciliation bill.
    • Vote to override the parliamentarian’s ruling.
    • Vote to nuke or modify the filibuster.
    • Fire the parliamentarian.
Democrats’ Sense of Urgency
  • Democrats can’t kill the filibuster. But they can gut it. Norman Ornstein WaPo March 2, 2021
    • Progressives’ anger at Minority Leader Mitch McConnell (R-Ky.) and his caucus, who use the filibuster to block every initiative they can, is nearly matched by their frustration with Joe Manchin III (W. Va.) and Kyrsten Sinema (Ariz.), whose opposition to getting rid of the filibuster means Democrats are stuck with it, since they’d need all 50 votes in their caucus, plus Vice President Harris as a tiebreaker, to do it. 
    • Manchin hasn’t budged, though. Monday, when asked if he’d reconsider his stance on eliminating the filibuster, he shot back: “Jesus Christ, what don’t you understand about ‘never’?”
    • Democrats are right to see the urgency: Republican state lawmakers around the country are moving to enact voter suppression measures that will, if passed, put the slender Democratic majorities in the Senate and House of Representatives in jeopardy in 2022 and beyond. Without democracy reform, and with the Supreme Court’s recent assaults on the Voting Rights Act, sticking with the filibuster could make it nearly impossible for the Biden administration to pursue its agenda.
Arguments against the Filibuster
The Senate Has Become a Dadaist Nightmare, Ezra Klein, NYT
  • In a closely divided Senate, with highly polarized parties, it’s almost impossible to get 60 votes on major legislation. But there’s a workaround, and that workaround is getting both wider and dumber: budget reconciliation.
  • The Byrd rules didn’t prevent non-budgetary legislation from being passed through reconciliation, but they did make that legislation worse, and weirder, and the Senate has simply decided to live with the ridiculous results, and make the rest of us live with them, too.
    • President George W. Bush’s tax cuts, for instance, were designed to expire — expire! — after 10 years because otherwise they would have increased deficits after 10 years, and so been ineligible for reconciliation. President Donald Trump’s tax cuts employ the same trick. 
    • Budget reconciliation warps policy design by pushing away from regulation and toward direct spending and taxation. An example: If you were designing a health care bill in budget reconciliation, you couldn’t pass a rule saying private insurers had to cover pre-existing conditions. But you could add a trillion dollars to Medicaid funding so it could cover anyone with pre-existing conditions who couldn’t get private insurance. 
    • Both House and Senate Democrats have said that their first bill will be the “For The People Act,” a package making it easier and safer to vote, and weakening the power big donors wield in politics by matching small donor donations at a 6:1 rate. But the “For The People Act” can’t pass through the budget reconciliation process, so it’s a dead letter.
  • You can also only do a limited number of budget reconciliation packages each fiscal year. That forces legislators to craft giant bills that jam every legislative priority into one rushed package, rather than crafting one bill, debating and modifying it, and then passing it and moving onto the next.
  • All of this is a choice. Every Senate rule can be changed by a simple majority vote. 
    • [Democrats can kill the filibuster by a simple majority vote. But Joe Manchin of West Virginia, and Kyrsten Sinema of Arizona have said they will oppose any effort to break the filibuster.]
The Senate Is Making a Mockery of Itself, Transcript of interview with Adam Jentleson  Ezra Klein, NYT
  • Adam Jentleson
    • This is one of the biggest misconceptions about the filibuster: the idea that it promotes bipartisanship. In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.
    • The irony here is that the framers saw this coming and they identified this misperception about supermajority thresholds in 1789. The reason they saw it was that they had just finished having direct firsthand experience with the Articles of Confederation, which did require a supermajority threshold for most major categories of legislation.
    • In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.
      • Excerpt from Federalist 22, by Alexander Hamilton
        • The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. 
The Founders Were Wrong About Democracy, David Frum, The Atlantic
  • Senator John Cornyn of Texas explained in a pair of tweets why 41 senators should be allowed a veto over measures desired by an American majority.
    • “A practical consequence of breaking the filibuster rule is legislative whiplash. Each time a party gets a bare majority, it can jam [bills] through, only to be reversed when tides turn. The 60 vote cloture requirement (filibuster rule) requires bipartisanship and provides stability in our laws- something we should all want in a big, diverse country of 330 million people.”
  • But this claim by Cornyn flunks the reality test. In the real world, the filibuster is a generator of instability and unpredictability. Consider a practical example.
  • In 2010, President Barack Obama proposed legislation to confer a legal status upon people who had arrived illegally in the United States as children. His legislation passed the House and won 55 votes in the Senate—not enough to surmount the filibuster.
  • But Obama’s action was supported by a majority of public opinion. So rather than submit to a veto by 41 of 100 senators, Obama acted by executive order. In 2012, Obama implemented the policy known as DACA, or Deferred Action for Childhood Arrivals. Trump reversed that order in 2017. That reversal was challenged in the courts. Last June, the Supreme Court ruled that the Trump administration had acted illegally. The DACA population moved from an illegal status in 2010 to a legal status in 2012, back to an illegal status in 2017, and then to a legal status again in 2020. Over the course of eight years, a group numbering in the millions toggled through four different legal statuses because 55 votes out of 100 is not enough to pass laws in the United States.
  • However you feel about the original Obama proposal, it is radically capricious to subject people to this kind of fluctuation in their legal rights. Yet that is the practical consequence of the filibuster, which pushes policy making out of the legislature, and into the executive and judicial branches.
  • The filibuster stops popular laws from being enacted. Presidents instead issue rules by executive order, looking to public opinion to back them against Congress. But executive orders command less deference from the courts, and so invite the even more anti-majoritarian judiciary to assert itself. The result all around is legal uncertainty.
Arguments for the Filibuster
Ezra Klein evaluates arguments for the filibuster in The definitive case for ending the filibuster, Vox
  • Argument: The filibuster protects minorities from the tyranny of the majority
    • Defenders of the filibuster, liberals and conservatives alike, hold that it protects the vulnerable few from the whims and will of the many. In 2005, when Senate Republicans threatened to eliminate the filibuster against judicial nominees, the liberal Nation magazine warned, “the gravest fear of the Founders — tyranny of the majority — will be the lasting legacy of George W. Bush, Tom DeLay, and Bill Frist.”
    • There is a cruel irony to this argument, as across the 20th century, the filibuster was primarily used to preserve the tyranny of the majority over the minority. Filibusters were rare in the midcentury Senate, but when they happened, it was primarily for one purpose: the preservation of racial segregation, hierarchy, and violence in the South.
    • As a weapon of the status quo, the filibuster is wielded by those who’ve already secured political representation and power, and so is often a tool the powerful use to protect their existing privileges. That the filibuster’s defenders cloak themselves in the glittering language of minority rights even as they’re using the filibuster to deny minorities rights is one of America’s more grotesque rhetorical inversions.
  • Argument: The filibuster ensures debate
    • The irony of the modern filibuster is that it rarely includes debate, and often prevents it. Indeed, senators often filibuster the motion to begin debate on legislation, which reveals how thin the commitment to deliberation actually is.
    • At the core of this is the reality that the filibuster of the present isn’t like the filibuster of the past, and it’s nothing like the filibuster of myth and film. Senators don’t need to speak in order to filibuster, and so they rarely do. The modern filibuster operates by either publicly or privately communicating the intention to filibuster. What that means, in practice, is that a senator tells the majority leader’s office they will demand a 60-vote threshold to move forward on the legislation, and moreover, they will make it slow and arduous to even get to the cloture vote. The usual effect of that is to prevent the majority from bringing a bill to the floor at all, because there’s not enough time to fight through all that delay.
    • Of course, if a single senator is filibustering a crucial bill, the supermajority will simply wait out the obstruction and vote for eventual cloture. This is where it is crucial to understand that the modern filibuster is not primarily, or even importantly, the tool of individual senators, and is instead the tool of parties. The mechanism through which they act isn’t debate, but the simple communication of intent: The minority leader’s office informs the majority leader’s office that they will not allow a given bill to move forward without 60 votes, and so if the majority does not have 60 votes, the bill does not move forward. Parties use the filibuster to stop their opponents from passing legislation, not to encourage discussion.
  • Argument: The filibuster encourages compromise
    • In 2005, in a speech condemning the Republican majority’s threat to extinguish the filibuster against judicial nominees, then-Sen. Joe Biden (D-DE) said, “At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. … It does not mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That is what it is about, engendering compromise and moderation.”
    • There is, as Jonathan Chait has written, an obvious answer to this argument. “The simplest rebuttal to this claim is look around you. Do you see a lot of legislative compromise?” There are more filibusters than ever, and more partisan gridlock than ever.
    • What McConnell understood was simple and obvious: The party in power will get electoral credit for bills passed with big, bipartisan majorities. But by the same token, the party in power will get the blame if Congress is paralyzed, if bills die amid partisan bickering, if the problems of the nation go unsolved. Compromise isn’t a gift the majority offers to the minority. It’s a boon the minority offers to the majority.
  • Argument: The Senate tilts Republican, and so will eliminating the filibuster
    • So it is true that the Senate tilts Republican, but it is also true that if they eliminated the filibuster, Democrats could try to fight for the democracy they claim to believe in. They may lose that fight, but they should look around: They are losing that fight now, and the surest way to lose it in the future, too, is to refuse to actually fight back.
Introduction to Budget “Reconciliation” CPBB
  • How Often Have Policymakers Used Reconciliation?
    • Policymakers have enacted 21 budget reconciliation bills since 1980, the first year they employed the process
  • What Kinds of Changes Can a Reconciliation Bill Include?
    • The Congressional Budget Act permits using reconciliation for legislation that changes spending, revenues, and the federal debt limit. On the spending side, reconciliation can be used to address “mandatory” or entitlement spending — that is, programs such as Medicare, Medicaid, federal civilian and military retirement, SNAP (formerly known as food stamps), and farm programs — but not Social Security. Mandatory spending is determined by rules set in ongoing authorizing laws, so changing spending usually requires amending those laws.
  • How Many Reconciliation Bills May Congress Consider Each Year?
    • Under Senate interpretations of the Congressional Budget Act, the Senate can consider the three basic subjects of reconciliation — spending, revenues, and the debt limit — in a single bill or multiple bills, but a budget resolution can generate no more than one bill addressing each of those subjects. In practice, however, a tax bill is likely to affect not only revenues but also outlays to some extent (for example, via refundable tax credits). Thus as a practical matter a single budget resolution can probably generate only two reconciliation bills: a tax-and-spending bill or a spending-only bill and, if desired, a separate debt limit bill.
    • In 2017, however, Congress was able to take up an additional reconciliation bill by passing two budget resolutions: one for fiscal year 2017 (the fiscal year already underway, for which a budget resolution had not yet been adopted) and then another for fiscal year 2018 (the fiscal year that would begin on October 1, 2017). Congress used the overdue fiscal year 2017 budget resolution to trigger a reconciliation bill intended to repeal the Affordable Care Act, and then used the fiscal year 2018 resolution to trigger a tax-cutting reconciliation bill.
    • There will be an opportunity to repeat this process in 2021, since no fiscal year 2021 budget resolution was adopted in calendar year 2020. That would allow Congress to first take up the overdue budget resolution for fiscal year 2021, use that to generate an initial reconciliation bill, and then take up a budget resolution for fiscal year 2022 (which begins on October 1, 2021) to generate a second reconciliation bill.
    • Under the Budget Act, Congress can revise a budget resolution after adopting it, although it hasn’t done so in decades. In theory it could use such a revision to trigger another reconciliation bill, but this has never been done.
What a Budget Reconciliation Bill Looks Like
American Rescue Plan Act of 2021

budget.house.gov/sites/democrats.budget.house.gov/files/documents/S%20Con%20Res%205%20Bill%20Final.pdf

What an Ordinary Bill Looks Like
For the People Act of 2021

congress.gov/117/bills/hr1/BILLS-117hr1ih.pdf

Weakening the Filibuster
Democrats can’t kill the filibuster. But they can gut it. Norman Ornstein WaPo
  • Make the minority do the work.
    • One way to restore the filibuster’s original intent would be requiring at least 40 senators to keep debate going instead of requiring 60 to end debate. If the minority couldn’t muster 40 votes the debate would end, making way for a vote on final passage of the bill in question.
  • Go back to the “present and voting” standard.
    • A shift to three-fifths of the Senate “present and voting” would similarly require the minority to keep most of its members around the Senate when in session. In a three-fifths present and voting scenario, if only 80 senators showed up, only 48 votes would be needed to get to cloture.
  • Narrow the supermajority requirement.
    • Another option would be to follow in the direction of the 1975 reform, which reduced two-thirds (67 out of a full 100) to three-fifths (60 out of 100), and further reduce the threshold to 55 senators — still a supermajority requirement, but a slimmer one. 
How to fix the Senate without abolishing the filibuster, Ian Millhiser, Vox
  • Make fewer bills subject to the filibuster
    • The Senate can create carveouts and exempt certain matters from the filibuster altogether, as it does with bills subject to the reconciliation process.
  • Reduce the power of individual rogue senators
    • The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.
  • Make it easier to break a filibuster
    • The Senate could reduce the number of votes necessary to invoke cloture. This could be done as an across-the-board reform, like the 1975 change to the filibuster rule that reduced the cloture threshold from 67 to 60. Or it could be done by creating a carveout for certain matters, such as the 2013 and 2017 reforms that allowed presidential nominees to be confirmed by a simple majority vote.
  • Reduce or eliminate the time it takes to invoke cloture
    • The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.
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