Wednesday, April 7, 2021 : By John Wesley Reid
John Wesley Reid is the Editor-in-Chief at the Standing for Freedom Center. John has worked in Washington D.C. for several years covering politics, the Supreme Court, and church relations within the political sphere. John is published in the Christian Post, CBN News, Disrn, Family Research Council, and other publications. Follow John on Twitter at @johnwesleyreid.
As Democrats took bicameral control of Congress in 2021, many conservatives became concerned that a progressive agenda will see no restraint. But thanks to the filibuster, the deliberative nature of the Senate remains, and the minority party still has leverage — for now.
Tyranny happens when masses are disregarded and representation is centralized in one body. The filibuster prevents such disproportionate ruling and serves as an insurance plan to critical dialogue, fair representation, and holistic democracy in the lawmaking process.
Without the filibuster, the greatest deliberative body in the world would lose its deliberative integrity and will fall prey to a steamrolling legislative process that prioritizes political agendas over representation —an irony our Founders fiercely fought to avoid.
From a practical standpoint, such a description seems laughable considering how hard it is for the Senate to pass a bill. But such a challenge speaks to the ingenious value of this parliamentary process. Two sides representing staunchly different doctrines coming together to govern should not be expected to pass legislation easily. If bills were passed easily, that could indicate a failure to represent varying ideas or it could indicate tyranny on the side of the majority party. The existence of the filibuster helps to ensure that the Senate operates in a cogitative and scrutinous fashion, as was intended with the Senate’s establishment.
Both parties have something to gain from it. Without the filibuster, Republicans would almost definitely have already suffered defeat over the Equality Act and Democrats would have lost abortion funding long ago.
Once used as an opportunity to read “Green Eggs and Ham” on the Senate floor, the filibuster is a procedural maneuver employing non-stop talking to prevent a vote in the Senate. Yes, Green Eggs and Ham was once read during a filibuster. In 2013, Sen. Ted Cruz, R-Texas, read the famed book while delaying a vote for Obamacare. Cruz read it on the Senate floor, Cruz read the book till he was sore. Cruz’ reading made his peers abhorred, and then Cruz read the book some more. (You’re welcome)
Traditionally, a senator will use the debate period preceding the vote to speak their dissent, with no time limit and no topical parameters. The purpose is to filibuster until the legislative schedule is dissolved and no vote can be had. In order to stop a filibuster and move to a legislative vote, a cloture vote is taken, which requires three-fifths of the Senate to vote for it, or 60 senators. In modern times, a cloture vote is proactively taken to save time. If a cloture vote can’t find 60 senators, then the bill that would otherwise need a simple majority will not be voted on, as a filibuster would be inevitable.
But if the majority can’t win, doesn’t that mean the minority does? This is a common question when it comes to the filibuster’s logical conclusion. The short answer is no, otherwise the minority would be tyrannical. The minority possesses power to block the opposing party’s agenda. It’s a defensive maneuver, but it doesn’t advance the minority party’s political agenda, which would be considered a win.
In “Mr. Smith Comes to Washington” starring Jimmy Stewart, the iconic actor plays the role of Senator Jefferson Smith who, in perhaps the most memorable part of the film, filibusters for 24-hours to kill a sham appropriations bill. To stop a filibuster and move to a vote requires a three-fifths majority, or 60 votes, which is challenging when the Senate holds slim partisan margins. The content of the filibuster is up to the rambling Senator, even if it be completely unrelated to the bill in debate. As one would imagine, filibusters have traditionally lasted for many hours. (consider how you might implement “no sir, I will not yield” into this piece.)
No, as there are exceptions to the use of the filibuster. Per current Senate rules, the big issues that cannot be filibustered are budget reconciliations and federal judicial nominees. But these rules have changed over the years and these changes are often done in sync with the majority party’s political agenda. In 2013, Senate Democrats changed the Senate rules so that only Supreme Court nominees could be filibustered, but federal district and appeals appointees could not be filibustered. Senate Majority Leader Harry Reid, D-Nev., made it this way because Republicans were blocking President Barrack Obama’s federal district and appeals courts nominees.
In 2017, Senate Republicans held the majority and changed the rules so that the filibuster could not be used to delay any federal judges, including Supreme Court nominees. Then-Senate Majority Leader Mitch McConnell, R-Ky., changed the rules to ensure the confirmation of Justice Neil Gorsuch.
Budget reconciliations cannot be filibustered under current Senate rules since the purpose of a reconciliation is to quickly pass what is fiscally necessary, and reserve other budgetary legislation for another vote. This raises a concern as to whether a majority party will take advantage of the process and stuff a reconciliation with rider policies unrelated to the budget, knowing they cannot be filibustered. To this, we have the Byrd Rule. Named after former Sen. Robert C. Byrd, D-W.V., the Byrd Rule installs strict parameters for a reconciliation’s content to ensure it stays within budgetary purposes.
Even still, not-so-subtle agendas can be implemented. For example, the $1.9 trillion COVID package passed in early 2021 failed to include Hyde Amendment protections, which would have prohibited the package’s monetary contribution for elective abortions. Since reconciliations can’t be filibustered and only require a simple majority, the package passed.
Yes, the filibuster can be eliminated, but such a move is not likely nor wise for either party. Since the filibuster prevents authoritarianism by the majority party, it is in each party’s best interest to sustain the filibuster, lest the majority party reap the non-deliberative consequences when they become the minority.
There are two ways to eliminate the filibuster. The first option would be to amend Senate Rule 22, which is the most objective option. However, it is also very unlikely since it requires 67 votes. The second option would be to go nuclear, which only requires a simple majority to pass but also sets a dangerous precedent. Like getting rid of the filibuster, the nuclear option can lead to retribution once the minority party becomes the majority.
But whether a nuclear option is even a viable strategy at this point is doubtful. A simple majority is needed to invoke the nuclear option, and with no Republicans on board it would require every Democrat plus Vice President Harris’ tie-breaking role. Democratic Sens. Joe Manchin of West Virginia and Krysten Sinema of Arizona have both expressed strong opposition. Manchin, whose moderate procedural views have effectively made him the Justice Kennedy of the Senate, has long opposed eliminating the filibuster, saying in 2020,
“I have never supported a repeal of the filibuster and I don’t support one now. I am willing to consider solutions that promote collaboration so the Senate is able to be a productive body again. But repealing the filibuster would result in even more partisanship.”
Manchin reiterated his position in 2021,
“I do not support doing away with the filibuster under any condition. It’s not who I am.”
“Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be: a place where senators come together, find compromise, and get things done for our country.”
The chance of a filibuster elimination is just as possible as it is improbable. But the fact that Democrats in the Senate are as supportive as they are about such an elimination is concerning. To maintain its deliberative stature, the upper chamber must hold itself accountable by securing the filibuster as a procedural anchor in advancing our fairly represented democracy. Otherwise, what’s the point of even having a Senate?
This article is part of the Standing for Freedom Center’s Spring journal, Equality: A Dream for Patriots, a Mask for Tyranny.