the most bipartisan issue never enacted
Before we start, I would vote to end the filibuster. Joe Manchin’s decision to not support it had me, a WV resident, angry. However, I always want to find bridges to solutions and the following is one I see as a good step forward in our Democracy.
Intro
There’s a guy peeing in a closet, another is reading a children’s book to a room of adults waiting to do their job, and a third is being restrained from throwing a spittoon at another person in the room.
Where do you think I’m describing?
A comic? A bad comedy movie? A “Where’s Waldo” book?
No, I’m talking about the US Senate! These all happened on the floor of the Senate and they all happened during a filibuster.
In 2017 (with a majority in the House and Senate) President Trump said we need to get rid of the filibuster (link). In 2013 Obama called to end the filibuster (link). Currnetly, one of my Senators, Joe Manchin has decided to torpedo the bill with the same vigor he did in the famous cap and trade bill during his first Senate run (see below). It is a bipartisan issue that never gets enacted. The filibuster lives on.
For practical and deep, constitutional & “American” reasons, I believe we just need to tweak the filibuster to make it work as intended in our current times. I would like to see it gone, but get why it can be a good idea to have. The idea is good, but it is being abused to obstruct and that hurts us all.
A quick bit of Civics
The Senate is meant to be “the cooling saucer of the Congress” and is often referred to as the most deliberative body in the world’s history. George Washington is said to have told Jefferson that the framers had created the Senate to ‘cool’ House legislation just as a saucer was used to cool hot tea (link).
For those of us that may have fogetten, let’s take a look at how a bill moves through Congress the best way I know how, with cartoons for kids!
To paraphrase the timeless classic above (focussing on the Senate):
- The bill is introduced and assigned to a committee designed to handle those issues
- The Committee amends and approves (or rejects) the bill and, if approved, leadership of the committee can move it onto the floor of the Senate for debate and a vote
- The full Senate debates the bill and will eventually have a vote on the issue, needing a simple 51 senators (over half) to enacted the bill
This final step is where a filibuster is used and there is a history of tinkering with this debate or “cooling” of the bills George Washington allegedly spoke about.
What I would propose
Keep the filibuster in law, but switch the requirement from needing 60 to invoke cloture to needing 41 Senators (number required to keep a filibuster going) to START a filibuster.
This makes it much harder for rogue members of any party to stall and derail the will of the people as seen through the eyes of Congress. The filibuster may die, but the goal is to allow for good-faithed debate, not stall tactics and TV time for polticians to utilize their incumbent advnatage during election season (for more on this incubment advantge -and why it’s horrible- see this post).
Why do we need the filibuster?
The filibuster is important to allow full debate on an issue that means a lot to the minority party. At least in the Senate, the filibuster has always been there in one form or another. Filibuster really just gives the Senator any amount of time to debate the bill. This is important because, in theory, they will be able to change minds and opinions by talking about the ins and outs of the issue.
Ways to stop debate in the Senate and force a vote on the bill, a timeline:
Original drafting of rules: No way to end debate.
1917: ⅔ of the Senate needed to end debate and force a vote (cloture).
1975-present: Currently 60 Senators which is ⅗ of the Senate is needed for cloture.
As the Senate grew (because America grew and each state gets 2 Senators), endless debate became more of a problem. Once we became 48 states, so 96 Senators, this unlimited debate began to become unwieldy. Ways to invoke cloture were introduced in order to gain a consensus to STOP the debate. The idea is that once a threshold is met, instead of unanimous consent needed to stop debate, you instead needed 2/3 of the congress to agree to stop debate and force a vote (cloture) This was done in the name of speed and avoiding delay tactics. There needed to be some way for a majority of the senate to say, “STOP THIS INSANITY” and force a yes or no vote on the bill and stopping debate.
The best way to see how often filibusters are used is to look a the number of times a Cloture motion is filed. It becomes very clear when looking at the graph below that this practice has been used nearly exponentially more since it was enacted.
Throughout the years it has been tinkered with, but the filbuster revolves around allowing the debate if only one Senator decides they want to make a well-reasoned arguement to persuade, grandstand for political gain, go for TV time, or some other, non-productive, reason like just stalling the progress of an administration (see this post to talk about incubment advantage that is at play).
Both parties do this.
My democratic party did it during the Trump years and the Republicans did it during the Obama years. It has turned out that nearly every bill is filibustered anymore and the constitutional 51 votes required to pass a law is now 60 votes. In order for a bill to pass, you now need 60 votes (in practice) so you can beat the inevitable filibuster and that is a perversion of the process and borderline not constitutional (in my, non-legal, opinion).
The Congress has no Cloture
The filibuster is supposed to be for all debate to be heard on the topic
Ted Cruz read Green Eggs and Ham on the Senate floor (link) in his attempt to single-handedly reject people with pre-existing conditions and Obamacare et.al. Does this stunt really do justice or contribute to the idea that the Senate is the most deliberative body in the world? One guy can take it on his shoulders and just grind to a halt any progress that could be made on compromise. This is a delay tactic, plain and simple, a publicity stunt.
Ted is far from the first to do this. Strom Thurman (southern democrat) had a staffer stand outside the chamber in a cloakroom with a bucket so he could keep one foot on the floor and still go to the bathroom (link). That is a mental image that I’m sorry I had to bring to you. On top of that, the issue he was so against seeing the light of day was the Civil Rights Act of 1957. He talked for 24 straight hours (still a record of inaction)! A feat of endurance for sure, but also a defeat to our Senate’s reputation and professionalism.
Even further back, in 1917 when the filibuster’s cloture was instituted, a member of congress (Robert LaFollette of WI) and a few others filibustered a bill and had to be restrained from throwing a spittoon at the opposition trying to break his filibuster at one point (link). The issue was about arming merchant ships to defend against German submarine attacks.
High tension and important decisions are discussed in the Seante and the filibuster doesn’t help end debate. Insteand, it infuriates people, digs them into their stances, and I’d bet hardly ever changes minds at this late stage in the bill’s progress through the Senate.
I see the filibuster as 24 hour news. It took a good thing, information and well-reasoned debate being shared with the masses and turned it into a popularity contest where anyone can grandstand for political (re-election and other) reasons. Any view is welcomed, even ridiculouse things, in the name of ratings and advertising dollars. In the Senate, the filibuster is the best way for Senators to get on these channels and, no matter how sincere they are in their objection to the bill, get unfettered coverage all day, every day, as they act to derail the passage of the bill unilaterally.
So why change the filibuster?
The issue is this Senate rule has created a problem. Yes, it is good to give good-faith discussions as much time as needed in the Senate. However, all it takes is one nair-do-well (or attention seeker) to derail the will of the people, even alone. You are supposed to need 51 votes to pass a bill in the Senate (currently) not 60 due to a couple Senators being stubborn and not shutting up and staging theatrics for poltical points or an entire minority party stalling every bit of legislation the duly elected majority is trying to implement as the will of the people.
One of the reasons the filibuster is never repealed is that when a party holds majority power in both chambers, they want to pass a lot of things, especially if they have a President in the Executive branch. This leads to the ability to speed through legislation and live up to promises made on the campaign trail. Getting rid of the filibuster would be great. However, the minority can ironically filibuster that filubster vote and effectively end it before it makes it to the floor. To the minority this “great” thing is smothering their voice of opposition to the bill, which I have a hard time disagreeing with when talking about well-reasoned, educated, professional debates (that’s not what is happening currently).
That’s where we are today and have been for some time.
The framers of the constitution didn’t want things to fly through the process from idea to bill to law really fast. They believed it was best for the Senate to be a check on that speed that majorities bring you. Unlimited debate (later amended as mentioned) was given to the Senate and they were to be “the cooling saucer” of the Congress, a speed trap of sorts. Senators were meant to be the thoughtful ones that hear all sides, debate, and make sure only truly just bills, in the people’s interest, pass through into law. This is why the filibuster is useful and very important to our system of governing, whend one correctly.
The need for the filibuster is that the minority party does need this process to check the power of one party controlling all the steps of bills being enacted, but it can’t be at the expense of passing ANYTHING. It doesn’t (and shouldn’t) be that you need 60 votes (the “Super Majority” that gives you unchecked power) to pass ANY bill. That is just not what is in the Constitution.
On top of these reasons, you will have a hard time getting both parties on board with eliminating this. The majority will always want to keep that power (with the rare exception being this year with Democrats, a great sign) and the minority will always fight to protect their voice in deliberations.
A bridge to actual action?
I like to find bridges, I think there is one that was originally proposed by Norman Ornstein & Al Franken (link). The idea is that you flip the filibuster on its head. Instead of allowing one senator to filibuster and it require 60 votes to STOP the debate, you require 41 Senators (the minority needed to keep a filibuster going) to START the debate. That will give the minority a voice as well as allow the Senate to not be as susceptible to stall tactics not endorsed by the entire party, that scenario of a whole party uniting is a whole other issue in Congress today.
I think this bridge to compromise on the filibuster would really allow the party in power to get a win and “beat” the filibuster, but leave it there for the important check on power when they are no longer the majority and want their voices heard.
All the proposal is suggesting is to make the burden of proving the need for unlimited, slow, debate on a bill on the person wanting to stall progress and have debate. It is making sure it isn’t just a whim of one Senator and is the will of a true minority of representatives of the citizens of the United States that this bill be discussed and worked on further before a vote. For the good of the American people all those minority senators represent.
Let’s not forget, the filibuster is the last step in the process before the yes/no vote. It has gone through many hoops and discussions already by the time it reaches the floor of the Senate. In the case of bills that start in the house (like all Tax bills), it has been debated for a long time in both houses and refined the whole time.
We all seem to agree something isn’t quite right with the filibuster, so let’s start with tweaking the rule instead of all out expulsion of the rule, which seems impossible at this point, for either party. Let’s stop peeing in cloakrooms and reading childrens’ books and try to bring some class back to the Senate.
It’s time for a change of strategy, we’ve been defeated by partician politics and grand standing. Let’s get that win back and try to win the future with a new strategy based on lessons learned from history.
