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November 16, 2021

MORE ON FILIBUSTERING IN CONGRESS

Constitutional Option explained by a writer for the Brennan Center for Justice is that “the filibuster is a government obstruction at an all-time high,” and that the Senate “must reform the filibuster to cut back on this dysfunction.”

Quite a mouth full, but is downright demonstrative of just how things go in Washington. In December of 2012, Senator Mitch McConnell was reported as warning that “changing the Senate rules by a majority vote, a procedure known as the “constitutional option,” would cause “irreparable harm’ by ‘breaking the rules to change rules.’”

Absolutely untrue states the Brennan Center! The Senate’s authority to change its rules by a majority vote stems directly from the Constitution, which authorizes the chamber to “determine the rules for its proceedings,” and unlike other legislative actions, such as expelling members or ratifying treaties, the Constitution does not require a super majority to approve change of rules.

The Brennan Center goes on to say “More to the point, the determination of majorities to hold a vote on change of rules lies at the root of past successful reform efforts since the creation of the modern filibuster in 1917.”

This writer does not purport to be expert enough to explain all the rules of the Senate, but here are additional points and comments which are basic that may just be enlightening as to why long-term serving members of the Senate stay in office indefinitely and adamantly wield their power – remember deceased Robert C. Byrd (D-WV), present-day Mitch McConnell (R-KY) and of course, cannot leave out Chuck Schumer (D-NY) to name a few.

Since 1917, critics of the filibuster blame an increased use for slowing business in the Senate to a halt, “often entangling the chamber in procedural maneuvering instead of substantive debate and ultimately, law making,” – more than 2,000 filibusters since 1917, amazingly about half since 2009. Talking and silent filibuster are two types of filibusters used by a senator to block a vote from proceeding by refusing to yield the floor. A senator could stand and talk as a way of blocking a vote from proceeding, even overnight sometimes,

A filibuster opposing the Civil Rights Act of 1957 by Senator Strom Thurmond lasted more than 24 hours. The silent filibuster evolved by the 1970s which takes only a “group of 41 or more senators simply threatening a filibuster, and a Senate majority leader can refuse to call for a vote.”

Significant legislation involving civil rights progress has been blocked:  anti-lynching bills proposed in 1922 and 1935; the Civil Rights Act of 1957; and legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing, and voting.

Half of the legislation proposed between 1917 and 1994 involved civil rights. The Rule XXII in 1917 proved to be the beginning of the modern filibuster used to block civil rights legislation, especially during the Jim Crow era.

But the cliché, “be careful what you wish for” comes to mind when looking at the increasing filibuster use. Critics object for the following reasons:  

  • filibuster is not designed to handle the sweeping scale of legislation as it is presently used; 
  • ongoing deadlock on certain issues has led to the use of the budget reconciliation rules to bypass the chamber’s procedural hurdles;
  • designed to expedite Congress’ budget process, as reconciliation bills can pass with only 51 votes, compared to the de facto 60-vote requirement imposed by the filibuster;
  • the maneuver undermines the Senate as a governing body and its reputation as a consensus-building chamber, thus threat of the silent filibuster silences debate and removes incentives toward compromise;
  • overuse of the filibuster also magnifies the small and large states each being represented by two Senators, and the population disparity has increased since America’s founding days. The 26 most populous states have just 17 percent of the U. S. population, meaning the filibuster can be used to prevent the passage of bills with broad public support – never the intent of the founding; and
  • the increase of executive power by presidents is blamed in large part on the filibuster as a result of the inability of Congress to act and to work with checks and balances between the branches of government.

 

Perhaps one of the most ominous impacts is that some legal scholars argue about the filibuster, that it may not be constitutional. Article I, Section 5, states that “a majority of each House shall constitute a quorum to do business.”

Filibuster reform is definitely needed, especially when used to block or defeat civil rights legislation and voting reforms. Changing Rule XXII is believed by experts to be the most straightforward way to eliminate the filibuster, but would require a two thirds super majority. The nuclear majority option can be implemented by the Senate majority leader using a non-debatable motion to bring a bill for a vote, and then raise a point of order that cloture can be invoked with a simple majority. 

The reader's comments or questions are always welcome. E-mail me at doris@dorisbeaver.com.

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doris@dorisbeaver.com