Brief # 16 Elections and Politics
Both Sides of the Aisle Want to Preserve the Filibuster
February 15, 2021
The Democrats now have slight control of the 50-50 Senate with Vice President Kamala Harris’ tiebreaker vote. Much like the former time the Democrats held the Senate, there is some discussion about whether or not to remove the filibuster, which allows the minority party to block votes on bills they are fighting.
The fact that the Democrats failed to move the John Lewis Civil Rights Act past a filibuster in 2020 has further compelled some legislators to favor an end to the filibuster before the GOP can block future Senate bills.
The longest filibuster to date is still the one Sen. Strom Thurmond preformed in his failed attempt to block passage of the Civil Rights Act of 1957. The late Dixiecrat spoke for 24 hours and 18 minutes before the law was finally passed 72-18. Thurmond would later switch parties from Democrat to Republican in protest over the passage of the 1964 Civil Rights Act.
More recently, Senator Ted Cruz came a few hours short of breaking Thurmond’s record when he attempted to force the then-Democrat-led Senate to defund The Affordable Care Act (aka Obamacare) in the legislature’s latest budget bill in 2013 ahead of a possible government shutdown. Cruz’s speech, which infamously included a reading of Green Eggs and Ham, was not technically a filibuster, since he was not blocking a vote, and then-Senate majority leader Harry Reid agreed to allow Cruz to speak.
The term “filibuster” can accurately refer to a variety of different legislative tactics, beyond the common conception of a filibuster that features hours upon hours of speeches from a Senator to run the clock out on voting for a pending bill.
“The Senate has no specific rules for filibustering. Instead, possibilities for filibustering exist because Senate rules lack provisions that would place specific limits on Senators’ rights and opportunities in the legislative process,” said a Congressional report on Filibustering and Cloture in the Senate, which was last updated April 7, 2017.
Senate rules require a motion for cloture in order to end debate and bring a bill to the floor for a vote. Cloture requires 60 votes – a figure that was lowered from 67 votes in 1975 by the Democratic majority. This means that all bills, not just those that are filibustered, require a cloture vote in order to be voted on.
The Democrats also modified the cloture rule in 2013 with the so-called Nuclear Option, which allows a simple majority to end debate and vote on appointed executive employees and judges. All other Senate bills require a majority vote of those in attendance to pass.
The Senate’s website lists the number of motions for cloture going back to the 1917-1918 legislative session, when there were just two. The need for cloture remained rare and never surpassed the single digits per two-year session until 1971-1972 when there were 24. In the years that followed cloture motions slowly increased until 2007-2008 when they jumped to 139 from the previous session’s 68. They continued to increase from there.
For the most part, filibusters now exist as an unspoken assumption. Throughout the 2019-2020 legislative session, 328 cloture motions to halt a filibuster were filed.
The Brennan Center for Justice argued, in an October 2020 article, in favor of eliminating the filibuster because of its history in being used to block civil rights improvements. The article noted that the filibuster has primarily served to block reform.
“Under current Senate rules, however, a minority can stymie efforts to fix our broken system,” wrote Brennan Center Senior Fellow Caroline Fredrickson. “Not slow those reforms, not deliberate, not debate, but simply block them. For that reason, democracy advocates and their elected champions must demand that the filibuster be eliminated.”
The Brennan Center also argued that the increase in filibustering correlates with an increased reliance on Executive Orders, but it is not clear that there actually has been a large increase in Executive Orders.
On the other hand, a recent article from the Federalist Society argued in favor of preserving the filibuster, suggesting that Republicans (who were still in control of the Senate at the time) would regret not having the filibuster if they failed to maintain majority control of the Senate.
It is also worth noting that Democrats were able to block a large part of Trump’s legislative agenda while breaking previous records for filibustering over the last four years.
As Congressional scholar Molly Reynolds argued in a New York Times editorial on April 5, 2018, the filibuster may just be one piece in a larger series of problems that have plagued the effectiveness of the U.S. Senate.
The Guardian: ‘Jim Crow relic’: Senate filibuster stands in way of Democratic voting rights push.
Politico: Cruz ends marathon speech
Congressional report on Filibustering and Cloture in the Senate
The U.S. Senate’s online record of cloture motions by session
The Brennan Center for Justice: The Case against the filubuster
The Federal Registry of Executive Orders by president.
The American Presidency Project: Executive Orders
The Federalist Society: Why Both Parties Should Preserve the Senate’s Legislative Filibuster
New York Times: Trump’s Problem Isn’t the Filibuster. It’s the Republicans
Vox: 7 myths about the filibuster