Here at Top of JC’s Mind, I sometimes – and more frequently in recent years – wade into the political waters of the US. Last October, I mentioned the Senate filibuster and my hopes that is would be reformed, tangentially in this post and fleshed out a bit in the comments.
Remarkably, these early weeks of the Biden administration have given rise to a lot of public discussion of the filibuster and how this arcane Senate rule might be reformed or eliminated so that legislation can pass the Senate by majority vote rather than needing 60 of 100 senators to end debate and proceed to a vote. This is called “invoking cloture.”
For decades, filibusters and cloture votes were rare. Maddeningly, filibusters were used to attempt to derail legislation on civil rights, voting rights, labor rights, and anti-lynching. (Republican Minority Leader Sen. Mitch McConnell has tried to argue that the filibuster was not used as a racist tool, but this twitter thread from Kevin Kruse proves him wrong with a long, but not exhaustive, list of past racially-motivated filibusters.)
During the Obama presidency, McConnell and the Republicans frequently used the filibuster to slow or prevent approving appointments and to keep legislation from reaching the floor for a vote. This was possible because all a senator needed to do was to say they wanted to filibuster and it would take sixty votes to end it, which, with all the Republicans sticking together, meant that there were never enough votes to invoke cloture and proceed to a vote. This led to a rule change that appointments were not subject to the filibuster, though other kinds of legislation still were.
One of the reforms to the process currently being discussed is to require that a senator wanting to filibuster must stay on the Senate floor and speak on the bill being debated. This revives the practice that was in place until 1975, although senators then weren’t required to speak on the bill and could read from the phone book or cookbooks or talk about totally unrelated topics.
There is also a proposal to change the cloture vote. Rather than needing sixty votes to end the debate, which puts the burden on the majority, the new rule would be that 40 or 41 senators would need to vote to continue the debate. This preserves the ability of the minority to put forth their arguments on something they feel strongly about but requires them to put forth effort to do so.
The hope is that these two reforms would break the stranglehold on bills that became so stark during the Obama administration. It might also engender more bipartisan bills actually making it to the Senate floor for a vote. (Mitch McConnell famously once filibustered his own bill when it became clear that President Obama would sign the bill into law. McConnell valued gridlock over governing.)
Or, given that it is just a Senate rule and not a law, the filibuster could be eliminated. Many think this would be the simplest path, but a few Democratic senators are vehemently opposed to ending it totally, although the impetus for reform is definitely gaining momentum.
While I had hoped that, under President Biden who was a long-time senator, some of the more moderate Republicans would want to vote for common-sense and popular bills such as the American Rescue Plan, we have yet to see that happen. The American Rescue Plan, despite its popularity with the public and its many provisions that benefit people in their states, garnered no votes from Republicans in Congress; it passed with a simple majority in the Senate due to special budgetary rules that prevented a filibuster.
There are now some popular and much-needed bills that have passed the House that will become test cases on whether or not bipartisan support is possible or whether it will take filibuster reform or elimination to get them on the floor for a vote. The For the People Act (H.R. 1/S. 1) addresses voting rights, campaign finance reform, government ethics, gerrymandering, and election security. Further voting rights issues are addressed in the John R. Lewis Voting Rights Advancement Act, which would help to restore provisions of the 1965 Voting Rights Act which the Supreme Court struck down in 2013, on the grounds that these racial provisions were now obsolete. Sadly, we have seen evidence that they are not, as efforts are now underway in 43 states to restrict voting access to certain groups of people, including by making it harder for people of color to vote or by making it more difficult for students or elders to register and vote by mail.
There are two House-passed gun safety bills, one on universal background checks and one extending the time the FBI has to vet purchasers to ten days instead of the current three. Both of these measures have broad public support, including among Republicans and gunowners. An increase in the federal minimum wage is very popular with the public, as are bills to re-build our infrastructure, increase our production of goods and green energy to create sustainable jobs, and to increase taxes on the very wealthy.
If bills like these pass the House and appear on the Senate floor, what will the Republicans do? Will they vote yes in accord with their constituents? Will they filibuster to stop a vote from occurring? If they do decide to filibuster, they risk the Democrats reforming the filibuster, voting that certain kinds of bills such as voting rights are not subject to it, or eliminating it all together.
Fingers crossed that whatever scenario unfolds, these laws will be enacted for the common good. We have been waiting for Congress to actually participate in governing in the way the Constitution sets before them.