Ross K. Baker
The empowerment of the minority party lies at the very heart of the difference between the House and the Senate. Speaker Nancy Pelosi with the barest majority was able to pass the $1.86 trillion American Rescue Act but with an even smaller majority Senate Democrats needed to invoke an exotic budget rule coupled with a parliamentarian’s ruling to get all 50 of their number behind the bill and to pass it but only with the tie-breaking vote of the vice-president.
It’s harder to pass bills in the Senate. It has always been harder to pass bills in the Senate. A determined and cohesive majority in the House can usually accomplish pretty much whatever the Speaker, as leader of the majority, wishes. In the Senate the will of the majority has always been hedged in by both formal rules(super-majorities to ratify treaties) and informal ones (senators placing “holds” on bills to slow their progress). But foremost among those barriers has been the filibuster.
Most people would be surprised to learn that the requirement of a super-majority to begin considering a bill was actually a reform that replaced the century-long practice of unlimited debate initiated in 1805 by Aaron Burr. Then the vice-president presiding over the Senate he decided that “calling the question” and moving immediately to a vote was unbecoming to the Senate and that senators should be able to block legislation until forced to yield the floor willingly or by exhaustion.
History of the filibuster
This was this practice used by a group of senators led by Wisconsin Senator Robert LaFollette to block enactment of a bill to defend American merchant vessels from from German submarines that had been making surface attacks on the ships. President Woodrow Wilson proposed arming the ships with deck guns crewed by navy gunners. Stymied by unlimited debate President Wilson’s bill died with the expiration of the 64th Congress.
The new Congress established a rule that debate could be terminated by a vote by a supermajority of members of the Senate. Wilson got his armed ships and the Senate got the filibuster which was seen as a reform.
But the filibuster became the notorious tool of Southern senators determined to kill civil rights and anti-lynching legislation which they were able to do to even under the relaxed rule which required the assent of 2/3 of the Senate. It was, however, used infrequently but ostentatiously such as when segregationist Strom Thurmond held the floor for almost 24 hours in an attempt to block the relatively innocuous Civil Rights Act of 1957.
Mitch McConnell:The Senate’s filibuster is Kentucky’s veto. It stops radical agendas.
The following year, the Democrats won a smashing victory in the midterm elections and would hold the Senate by substantial majorities for the next 22 years. There were even periods in which Democratic senators outnumbered Republicans by as much as 68 to 32 and their numbers never fell below 54. It was during this period with the filibuster intact that the great civil rights, voting rights, and fair housing bills were enacted. This situation prevailed until the Reagan election of 1980 when the GOP regained the majority. During their period of numerical dominance the Democrats lowered the number of votes to shut down filibuster to 3/5 or 60 senators which is the present number.
Not driving force on slim majorities
An enfeebled minority in the Senate has reason to cherish the filibuster and a solid majority every reason to scrap it. The situation becomes more complicated in the case of slender majorities such as the situation today because the paper-thin Democratic advantage of 2021 could vanish in the 2022 midterm elections. Democrats pushing their leader, Charles Schumer, to eliminate what remains of the filibuster after changes in 2013 and 2017 reduced it to the point where it can be used only on legislation, not judicial or administrative conformations, have worthy goals in their desire to protect voting rights and promote infrastructure but if forced back into the minority after the next congressional elections they would view the filibuster differently.
A newly-emboldened GOP majority might well push for tax reductions that would cut the ground out from under the American Rescue Act or quash LGBT rights bills that have become GOP targets. A filibuster might come in very handy in those situations when the shoe is on the other foot. Then there is the question of whether all 50 of today’s Democrats could even be corralled into eliminating the filibuster.
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Some interesting ideas have been floated by President Biden among others that would require the filibusterers to actually take the floor and talk rather than silently withhold their consent to proceed to take up a bill. Surgery on the filibuster is preferable to amputation. It is also well to recall Thomas Jefferson’s admonition: “Great innovations should not be forced on slender majorities.”
Ross K. Baker is a distinguished professor of political science at Rutgers University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @Rosbake1