It’s rule-making time in the U.S. Senate. While Democrats have nominal control — there are 48 Democrats and two independents who caucus with the party, plus Vice President Kamala Harris’ tie-breaking vote — regular functioning of the upper house requires a power-sharing agreement.
Chuck Schumer, the New York Democrat who is now the Senate majority leader, and Republican Mitch McConnell, the minority leader, are apparently in negotiations. The Associated Press reports that they “met Tuesday to begin hammering out the details of organizing the chamber,” and that McConnell believes that “the crucial, longstanding and bipartisan Senate rules concerning the legislative filibuster (should) remain intact.” This apparently will set up a showdown between the two leaders, as Schumer attempts to mollify his left flank, the AP says.
McConnell has argued that the filibuster protects the minority party by slowing momentum on legislation and giving Senators wide latitude to debate bills that come before them. His argument is not new, nor is it one that is it one made only by Republicans over the years. Democrats have made similar arguments over the years, even as small reforms in the cloture rules have been made to keep legislation flowing.
But the filibuster also is anti-democratic. Its use, historically, has been to thwart expansion of civil rights, to stymie efforts and universal healthcare, to prevent most major changes from taking place.
The Congressional Research Service, in a 2017 report, argued that the filibuster forces compromise.
The ability of Senators to engage in filibusters has a profound and pervasive effect on how the Senate conducts its business on the floor. In the face of a threatened filibuster, for example, the majority leader may decide not to call a bill up for floor consideration or may defer calling it up if there are other, equally important bills the Senate can consider and pass with less delay. Similarly, the prospect of a filibuster can persuade a bill’s proponents to accept changes in the bill that they do not support but that are necessary to prevent an actual filibuster.
This may have been the intention behind its creation, but it no longer functions in this way. Rather than a force for compromise, the filibuster has been used primarily by Republicans to create a supermajority requirement to get anything done. The Senate has acknowledged this over the years, lowering the threshold for cloture — the formal vote for ending debate — to 60 for legislation and by eliminating the potential for filibuster of judicial appointments.
While the Democrats were able to get the Affordable Care Act through the Senate in 2009, numerous other legislative efforts were killed in the Senate because the Democrats could not gain a supermajority. This may make my argument seem a partisan one, but it’s not. I’ve been opposed to the filibuster since 2003, when George W. Bush was president. Until then, I had been mostly supportive, seeing it as a check on ill-conceived legislation.
Understanding the way the filibuster was used during the civil rights movement as a roadblock to change, to ending segregation and opening voting and other rights to Black Americans, caused me to shift my view and write a column critical of the Republicans’ use of the filibuster as a political cudgel. The majority leader at the time, Bill Frist, was unable to get some of Bush’s more conservative judicial appointees through the Senate. He threatened to end the filibuster for those appointments — a move that ultimately did happen several years later.
Frist said at the time that presidential nominees deserve an up-or-down vote. A minority of senators should not be able to gum up the appointment process, he said. If Democrats would not allow a vote, he would move to end the filibuster.
Frist anticipated the shift in the way the filibuster would be used — and not just on appointments. Republicans turned the filibuster into a supermajority requirement for legislation, effectively turning the Senate into a place where legislation goes to die.
From my 2003 column:
The filibuster is, as the self-professed "liberal Democrat" Timothy Noah wrote ... on the online magazine Slate, a conservative instrument designed to thwart the will of the majority. The Los Angeles Times, in an editorial, echoes this: "The filibuster is a reactionary instrument that goes too far in empowering a minority of senators," the paper wrote Tuesday.
The Senate already is an undemocratic body. Texas has nearly 30 million residents, California almost 40 million — almost one fifth of the U.S. population. Each gets two Senators, the same as Wyoming (572,000), Vermont (627,000), and every other state. The filibuster exacerbates this — the 20 smallest states have 40 senators, meaning they can stop most legislation in its tracks. They have 35 million people — a bit more than one tenth of the national population — and essentially hold a veto when taken together.
If we were really committed to democratic government, we would eliminate such an obstructionist tool.