Now that Senate Democrats have a majority, by virtue of a tiebreaking vote in Kamala Harris’ hands – in her capacity as president of the Senate – Minority Leader Mitch McConnell (R-KY) is attempting to protect the legislative filibuster, which is the only real leverage left to his party in Congress. Without the filibuster, Senate Democrats can, in theory, pass any bill they wish – even some of the most drastic measures that many assume will quickly emerge from a newly-emboldened Democrat House of Representatives.
With the upper chamber split evenly between the two parties – since the two so-called Independent senators invariably caucus with the Democrats – power-sharing negotiations are underway. The majority party controls all of the many Senate committees, and Democrats must now negotiate with the former majority to take over some of those committees. McConnell is attempting to weave into those talks a provision to preserve the filibuster.
Though Senate Democrats are divided on the issue, it appears that most would like nothing more than to eliminate the filibuster now that they intend to ram through an avalanche of legislation aimed at fundamentally altering America’s social, political, and economic future.
Filibuster and Cloture
The history of the filibuster is both amusing and confusing, but what is it, exactly? Without getting into the weeds of Senate history and rules, a filibuster can be described, basically, as a means of preventing or postponing a Senate vote.
Before a vote, any issue or bill before the Senate is subject to senators’ rights to debate it. Most topics – but not all – require 60 Senate votes to advance to a final vote. Does that sound confusing? If it does, that’s because the Senate strives, as it always has, to be Congress’ mature, deliberative body; the cabal of wise counselors who reign in the impulsiveness and excess of the House. To allow senators their opportunity to debate, a supermajority of 60 senators must vote to end debate and move to a final vote. This is known as the cloture rule.
Three Ways to Bust the Filibuster
There have been previous attempts to end the filibuster. During the 19th century, both parties at various times introduced motions to ban the filibuster – but those attempts were filibustered. As things stand today, there are three ways around it. One is known as unanimous consent. The Senate majority leader (or any other senator, in fact) can ask the chamber if there is any objection to ending debate and moving to a vote on the issue at hand. If no objection is raised, the debate is ended.
Another way to eliminate the filibuster would be to amend Rule 22 – the cloture rule. However, the problem is that two-thirds of the senators present at the time would have to vote to end the debate on amending the rule. Yes, that’s right; the vote on ending the filibuster could be filibustered.
The alternative, assuming the two previous attempts to circumvent the filibuster have failed, is what has become known as “the nuclear option.” A lot of how the Senate does things is based on precedent, but, ironically, a new precedent can be created with relative ease. A senator can raise a point of order, and the presiding officer – the chair – can agree or disagree. If he or she disagrees with the point of order, another senator can appeal, and a simple majority vote can overturn the chair’s ruling. Officially known as “reform by ruling,” this is how a new precedent is created.
What are the implications? Simply put, it is not easy for either party to muster 60 votes in the Senate when it comes to significant pieces of legislation. Far easier is it to find 51 senators who will vote to end debate on an issue. If Democrats can kill the filibuster, they will be able to expedite the passage of any bill they want.
Wouldn’t Republicans do the same thing were the situation reversed? They would want to, perhaps, but what has stayed the hands of previous Senate majorities – both Republican and Democrat – is the fear that eliminating the filibuster is only a good idea when you are the majority.
Perhaps a majority of Democrats in Congress today believe that they will never again be the minority party and feel secure enough to force through this rule change that will end the Senate’s reputation as a thoughtful and deliberative body.
Read more from Graham J. Noble.