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Saturday, January 28, 2023

Why Progressives Should be Wary of Killing The Filibuster

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Independent and Democratic progressives are pushing to eliminate the Senate filibuster. They see how it has often succeeded in stopping legislation that protects citizens’ freedoms. 

Filibustering against civil rights legislation in Congress is an unfortunate tradition. It was repeatedly used by Southern Democratic senators to successfully block efforts to pass anti-lynching legislation in the 1920s and ’30s. Senator Strom Thurmond of South Carolina became the iconic example of filibustering when he talked twenty-four hours straight to stop the passage of the Civil Rights Act of 1957 to protect the right of Blacks to vote. His effort failed, and the Act passed within two hours of when he sat down. The filibuster was used again in another failed effort to stop the Senate from passing the Civil Rights Act of 1964.

Less publicized is how the filibuster has been used to block workers’ rights legislation, such as the 1978 Labor Law Reform Act and, more recently, the Employee Free Choice Act, supported by the Obama administration. Republicans are threatening to filibuster to stop the Senate from passing HR1. This is a critical bill that would negate past state-mandated laws suppressing voter turnout and curtail the impact in the 47 state legislatures that have bills before them to restrict ballot access further. Many Democrats use these examples to demand an end to the filibuster.

Eliminating the filibuster would allow passage of progressive legislation to protect civil, employee, and voter rights. That is true if a Democratic majority controlled the Senate. However, progressives should pause and consider that there will be different outcomes when the Republicans come to control the Senate. In exactly half of the congressional sessions since 1989 to the end of Donald Trump’s term, they were the majority party in the Senate.

President Donald Trump told Senate Republicans, who were in the majority, that they “look like fools and are wasting time” by preserving the filibuster. Without the Democrats being able to use the filibuster, Republicans would have passed legislation to defund Planned Parenthood and limit protections for undocumented immigrants. The Democrats were also able to deny the Republican Senate from banning abortion after 20 weeks of pregnancy. Republicans could not obtain the sixty votes to close the debate and allow the legislation to pass. 

The filibuster was a relatively dormant tool until the Nixon Administration

The filibuster is more of a generic term than a legal one. It simply allows senators of the minority party to delay a vote on legislation that the majority party would pass. The delay in effect becomes a veto if the talking filibuster or threat of a filibuster cannot be formally ended through a vote.

On a side note, the House does not have a filibuster. Back in 1806, when both chambers established their rules, the House retained the right to take a vote through a majority vote. The Senate dropped that requirement. Some historians say it was done by accident.

Up until 1917, there was no way to force a vote in the Senate if the minority party refused to give way. The compromise reached that year would allow a two-thirds vote of the Senate members to cease an endless debate from stopping legislation. Before 1917, no precise measurement of how often filibustering occurred existed other than combing through the historical debate records. 

Since 1917, a record is kept every time there is a motion for cloture, i.e., ending a debate to take a vote. There is also a record of the number of votes are taken after the motion was made. And there is a record showing how many of those votes resulted in cloture being invoked.

Despite the ability to end a filibuster, only six passed a cloture vote from 1917 to the 1971-72 session. In 11 of the 21 sessions, no vote was even taken. There is no formal record indicating when a filibuster occurred other than a vote being taken. There were undoubtedly delaying tactics used to delay or stop a vote, which might result in a motion to consider a cloture vote, but no such motions were made in nine sessions. Even though filibusters were used to stop the adoption of lynching laws, as a rule, there is not a clear record of how they threatened to block similar legislation. 

The record clearly shows that in the 1971-72 congressional session, which would have been the second half of Richard Nixon’s first term, filibusters did explode. They went from a high of seven votes for cloture in any single session to 20 votes in that session. From 1972 forward, the number of cloture votes per session dropped only once below 20 votes. 

The trend began with the Democrats being the majority party in the Senate during Nixon’s second half of his first term. The Republicans used the filibuster to stop passage of the U.S.-Soviet Arms Control Pact, the Equal Employment Opportunity Commission, and the Military Draft Extension but lost the cloture vote. That session saw a landmark of four cloture votes being invoked, with the number rising steadily to the end of the Trump administration.      

In 1975, the Senate reduced the number of votes required for cloture from 66 to 60. The Democrats had 61 members, so that avoided an effective filibuster from stopping their legislation. However, following the end of the next congressional session, neither party reached a high of 61 members in the Senate. Consequently, the filibuster has become the weapon of choice for the minority Senate party. And it has been increasingly used by both the Republicans and the Democrats.

Tracking the use of the filibuster by Ds and Rs

The majority party makes the motion to ask for cloture because their agenda is being delayed. The minority party filibusters to stop the majority from passing legislation. The higher the number of motions, the more the minority party employs filibusters to prevent the majority’s legislation from passing. 

From the first congressional session in the George W. H. Bush administration (1989-1990) up to the third congressional term in George W. Bush’s administration (2005-2007), there were 601 motions for cloture during that 9-session period. An explosion followed this period in using the filibuster. 

During the six congressional sessions before the Joe Biden administration began, there was a total of 1,161 motions for cloture by both parties covering the Obama and Trump’s terms. The Republicans made 153 more motions for cloture than the Democrats did during this period, even though both parties were the majority party in the Senate for three sessions each. 

More important, the Republicans were forced to have a vote on cloture 207 more times than the Democrats pursued such a vote. Sarah Binder, a professor of political science at George Washington University, argues that cloture votes, while imperfect, are a valid measurement of minority efforts to block the Senate. Consequently, the Democrats used the filibuster more often than the Republicans to stop the other party’s legislation from coming up for a vote.

This data runs counter to an article by Caroline Fredrickson for the Brennan Center for Justice. In her extensively documented “The Case Against the Filibuster”, she wrote, “During the Obama administration, Senate Republicans took obstruction to a new level, using the filibuster more than ever in history.” While that is technically correct, the record shows that Democrats then set a new historical record for “obstruction” when the Republicans became the majority party in the Senate. 

It is challenging to figure how eliminating the filibuster, which the Democrats used more than the Republicans in the last 31 years, would benefit the Democrats. 

Filibuster’s role in our democracy

Fredrickson also makes an argument that the filibuster has clogged up the democratic process, implying that it has contributed to the decline in Congress’s productivity. The problem is that most of the time that filibustering has been available, there is no parallel between enacting cloture and the number of bills that the Senate passed. She notes that, “In the 84th Congress (1955–1956), the Senate passed 2,410 bills, a high for the chamber.”

However, from 1917 to 1956, cloture was only invoked four times, three of which were in one session. She further shows that “By the 92nd Congress (1971–1972), the number of bills passed dropped below 1,000 to 927.” During that period of eight sessions, cloture was only invoked eight times, half of which were in the last session. It is hard to make a credible case that the filibuster is the cause for stifling the Senate’s productivity. 

Congress has passed and introduced fewer bills, as she correctly notes. However, I believe it’s not because of the filibuster. It’s because ideology is taking the lead in shaping both political parties. The evidence is found in how the votes for invoking cloture have dramatically increased while productivity has shrunk.

Invoking cloture never exceeded 48 percent of the motions succeeding during the combined terms of H.W. Bush and Bill Clinton, even with each party controlling the Senate for three sessions. In the collective terms of all the presidents that followed them, George W. Bush, Obama, and Trump, each party controlled five sessions for a total of ten terms. Only once did invocation fall below 48 percent. It was during this period that passing legislation dramatically declined the most.

The increase in the invocation rate and the decrease in passing legislation can be traced to the parties marshaling greater discipline over their members and increasing ideological differences. 

There are more significant practices than filibustering that have hindered our democracy from functioning correctly. Those would be the disproportionate representation of less populated states in the Senate, gerrymandering of state legislative districts that draw the congressional districts, and enacting voter suppression measures that target the other party’s voters. These all should be corrected to secure a more responsive government to the majority of citizens.

The filibuster was not included in the Constitution, which prescribes supermajority votes only for specific subjects, such as treaties. The implication being that a simple majority is an expectation for passing legislation. 

Nevertheless, it is part of our political heritage that will be difficult to abandon, even for Democrats. Thirty of them, including now Vice President Kamala Harris, joined an equal number of Senate Republicans signing a letter in April 2017 asking both Majority and Minority Leaders Mitch McConnell and Charles Schumer “to preserve the rules, practices, and traditions … to engage in extended debate.” Their message leaves the door open for adjusting the filibuster rules but not eliminating them. 

Adjustments have been made to make the filibuster less disruptive. Molly Reynolds of the Brookings Institution has counted 161 exceptions to the filibuster’s supermajority requirement that the Senate or statute has created between 1969 and 2014. More have been made since then. For example, in 2017, the Senate reduced the number of votes needed to end debate on nominations.

Another needed change, led by Senator Jeff Merkley (D-Ore.), is to require attendance in the chamber to physically participate in a filibuster.  Allowing a filibuster to occur with just filling a notification is a significant flaw created when the Senate rules lowered the number of votes needed to achieve cloture.  Both parties have taken advantage of requiring little effort to begin and sustain a filibuster. And why not? If the other side is doing it? The result has been a race to strangle the other party’s prime legislative priorities with minimal visible effort. 

What is most insidious is that filibustering can occur throughout moving a bill through the Senate. It is not just one filibuster to keep legislation away from a final floor vote. Instead, multiple filibusters stop or slow down the processing of a single bill along its way to a floor vote. 

The wisest course of action in resolving the filibuster’s negative impact on our legislative process is to think through the consequences of any change and take intermediate steps to lessen unintended consequences. That approach is not compromising principles. It is pursuing the most effective alteration possible to keep our Senate as a functioning chamber for passing significant pieces of legislation.

Cloture Motions and Votes in every Congressional Session since 1991


Nick Licata
Nick Licata
Nick Licata, was a 5 term Seattle City Councilmember, named progressive municipal official of the year by The Nation, and is founding board chair of Local Progress, a national network of 1,000 progressive municipal officials. Author of Becoming a Citizen Activist. http://www.becomingacitizenactivist.org/changemakers/ Subscribe to Licata’s newsletter Urban Politics http://www.becomingacitizenactivist.org/

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