July 31, 2021

Ending the Filibuster

By Stephen Tuttle | June 12, 2021


The filibuster, much in the news lately, has an interesting if not usually glorious history.

From the French word filibustier, it was first used as a negative descriptor of pirates marauding French colonies in the Caribbean in the early 17th Century. It would be more than another century before it appeared in American politics and then only by omission. 

As we know it today, the filibuster is an obstructionist device used by one party or the other in the U.S. Senate to prevent legislation from being passed by endlessly debating it. But during a filibuster, that “debate” need not necessarily stay on the subject. Once recognized and given the floor, a senator can talk about anything at all during a filibuster; there are no subject rules.

Finally, in 1917, the Senate got around to creating a mechanism to end filibusters. Called cloture, it originally required a two-thirds vote of the senators present but has since morphed into three-fifths of the entire Senate, or 60 votes.  

The filibuster has the reputation, now promulgated by some progressives, of being created as a racist tool to undermine civil rights. That seems unlikely since Burr's parliamentary housekeeping suggestion was in 1806. It is true enough, though, the filibuster has been used by southern senators attempting to sink civil rights legislation.

In 1957, Strom Thurmond of South Carolina, then a Democrat but soon to become a Republican, yammered away for 24 hours and 18 minutes in an effort to defeat that year's Civil Rights Bill, a record for an individual that still stands. His efforts failed to change a single vote, and the legislation passed.

In 1964, a group of southern Democrats went much further, conducting a filibuster that lasted 60 days in an effort to kill the Civil Rights Act of 1964. That one didn't work, either; the legislation passed. (That filibuster lasted that long because several people joined together, yielding the floor to each other until a cloture vote finally shut them up, and down.)    

The Constitution would appear to believe legislative decisions should be made by a simple majority vote. The Senate seems to disagree. Only budget reconciliation and presidential nominations can pass with a filibuster-free majority. Any legislation can be filibustered for any reason at all.

Wiser heads prevailed in the House, and in 1841 it limited members to no more than one hour of debate on any issue, eliminating the filibuster without actually saying so. (Only 14 states currently allow some form of the filibuster.) 

Democrats now talk about ending the filibuster, something they could do with a simple majority vote. Their reasoning is pretty simple; if the GOP threatens to filibuster every significant piece of legislation put forward by the Democrats, and it takes 60 votes in an evenly divided Senate, there is no chance they will ever pass anything.   

There will be no elimination of the filibuster because Democrats cannot generate 50 votes from their own party, thanks to Kyrsten Sinema of Arizona and Joe Manchin of West Virginia. Nor will there be an open, bipartisan Congressional investigation into the Jan. 6 insurrection at the Capitol, or legislation guaranteeing the rights of all of us to vote; Manchin, Donald Trump's favorite Democrat, opposes both.

If they want a rule change, it should be this: Whoever wants to filibuster has to actually do it. As it stands now, no actual filibuster is required, just a note threatening one. So, what used to take some organization, coordination, and real effort now just requires a short email. It takes but seconds to write and send such a note and seconds to grind the Senate to a halt thereafter. 

The filibuster is an artificial construct born accidentally that has mainly served as a vehicle to allow a minority of senators to control, or at least impede, the majority. Once announced, it stops even debate on issues of real substance, like what led, directly and indirectly, to the events of Jan. 6 — or how we can protect the rights of voters from overreaching voter suppression legislation in several states. 

The current rhetoric, however, could change dramatically. Should Democrats lose control of the Senate in 2022 — a very real possibility — those now yammering for an end to the filibuster will instead use it as the same weapon Republicans now wield. And it will be Republicans talking of eliminating it.


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