Seeing the Round Corners

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November 9, 2021

The complaints of many Americans voters when asked about Congress and Congressional leaders is, “They never get anything done – it is a do nothing bunch of people.” Dysfunctional also comes in at a law rumble.

Today’s column is the first of a two-part one on the filibuster. The modern filibuster has been around since 1917. A brief explanation is appropriate on just what a filibuster is. Historically, under original Senate rules, unlimited debate was a tactic and a right that Senators had, and was used as a way “they could indefinitely delay a bill without supermajority support from ever getting to a vote.”

The filibuster comes into play when the Senate wants to delay or block a vote on a bill. The bill is introduced by a group of Senators, then it goes to the appropriate committee for discussion, hearings and amendments –a favorable vote by a majority of the committee moves the bill to the Senate floor for debate and a vote. The catchy part, it takes a vote of 60-to cut off debate, and that’s where the “60-vote supermajority is now considered the defacto minimum for passing legislation in the Senate.”

Here’s the catchy part. It only takes a simple majority of 51 votes to pass a bill after debate has ended. That was the original rule in the Senate, but in 1806, Vice President Aaron Burr was persuasive with his argument that the rule was redundant, and the Senate stopped using the motion.

As is too often the case, Senators did not see how the change “inadvertently gave Senators the right to unlimited debate, and how the tactic meant they could indefinitely delay a bill without supermajority support from ever getting to a vote.”

As the realization of what unlimited debate meant, a solution to breaking a filibuster was passed in 1917. Rule XXII, also known as the cloture rule, “made it possible to break a filibuster with a two-thirds majority. That requirement was “reduced to 60 votes which has effectively become the minimum needed to pass a law.”
As with any rule, there are exceptions to the rule. Most notable is the 2013 change made by Democrats “making confirmation of executive branch positions –including the cabinet – and of non-Supreme Court judicial nominees with a simple majority.”

In 2017,   the change was made to include supreme court appointments by a vote of the Senate.  The two changes  – unlimited debate and the Rule XXII (cloture rule) – “invoked what is known as the nuclear option, or an override of a rule to overcome obstruction by the minority.”

There certain types of legislation that are exempted from the Rule XXII (cloture rule). Examples are Congress’ annual budget reconciliation process, requires a simple majority and cannot be filibustered; trade agreements that are negotiated via fast-track rules cannot be filibustered. Military base closures or arms sales are also exempted from filibusters. From 1969 to 2014, “161 exceptions to the filibusters’ supermajority requirement, according to analysis by the Brookings Institution.

Next week, a closer look at filibustering, its impacts and what the Constitutional Option is.

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