If only life were a West Wing episode!
Unfortunately, the filibuster has more often, and more and more in recent years, been used by the minority party to put a stranglehold on all Senate debate. Today the For the People Act and the John Lewis Voting Rights Advancement Act are both frozen in place due to the filibuster. These two vital pieces of legislation would eliminate dark money from politics, end partisan gerrymandering, ensure automatic voter registration, make absentee voting more accessible, and restore elements of the Voting Rights Act that were gutted by the Supreme Court in 2013 and again just a few weeks ago. These two bills would essentially kill the nearly 400 anti-voter, anti-democratic bills sweeping through state legislatures, including over 20 bills right here in Wisconsin. (see Law Forward’s Election and Voting Bills in Wisconsin – Analysis)
What is the filibuster, anyway? It is a Senate rule (not in the Constitution, not a law, just a self-imposed rule of the Senate) that says you need 60 votes to invoke ‘cloture’ – meaning to stop debate on a bill and put it up for a vote. So a Senator can filibuster a bill for all eternity, and unless the bill’s supporters can come up with 60 votes to end debate, the filibuster precludes a vote on the bill. Sadly, in today’s hyper-partisan atmosphere, it becomes nearly impossible to get to 60 votes on anything.
Further, the so-called ‘talking filibuster’ is a thing of the past. All a Senator needs to do is threaten filibuster, and that is sufficient to kill a bill.
There is a long history of the filibuster used as a tool of white supremacy, to thwart efforts to extend civil rights to Black Americans. In 1922, it was used to defeat an anti-lynching bill. Notoriously, in 1964, Southern Democrats (yes, Democrats) used the filibuster to delay passage of the Civil Rights Act for a record 60 days. Read more about the shameful legacy of the filibuster and white supremacy here.
A recent Union for Reform Judaism (URJ) resolution on the filibuster noted,
“…a growing body of evidence shows that today’s filibuster has contributed to political stalemate and obstruction by the minority. Senate action requires not merely a majority but 60 votes within the 100-member body, which happens rarely. Though there were just 49 votes to end a filibuster (invoke cloture) between 1917 and 1970, there were 298 votes to invoke cloture in 2019-2020 alone – indicating the exponential growth in use of the filibuster as a legislative tactic. The filibuster, once a rarity, is now a central governing principle of the Senate. Rather than encouraging compromise between senators with differing views, the filibuster allows senators to avoid the need to compromise – or even to discuss.” (https://urj.org/what-we-believe/resolutions/urj-resolution-filibuster-reform#_ftn2)
Over the years, there have been many changes and modifications to the filibuster. “Budget reconciliation” is a process whereby budgetary items can pass by simple majority. In 2013 and 2017, carve-outs were made to allow simple majorities for confirmation of Executive Branch and judicial nominees, including Supreme Court nominees.
The URJ resolution proposes six modifications to Senate rules, to encourage debate and bi-partisan cooperation. Specific to the filibuster is a call to bring back the ‘talking filibuster’, and a suggestion to reduce the number of votes needed to invoke cloture, perhaps to 55 votes.
Recently, Senate Majority Whip James Clyburn suggested a carve-out be made to the filibuster, similar to the carve-out for nominations. This carve-out would be for issues involving Constitutional rights, including voting rights. It would allow for passage of the For the People Act and the John Lewis Voting Rights Advancement Act.
President Biden has spoken about the need to pass these two bills, and yet he is reluctant to modify or end the filibuster. Two senators, Joe Manchin of West Virginia, and Kyrsten Sinema of Arizona, refuse to consider these options. Yet, without changes to the filibuster, or ending it entirely, the future of our democracy is hanging in the balance.
As people of faith, we recognize the importance of cooperation, of healthy debate, and most importantly, of protecting the minority against the tyranny of the majority. But we also cherish democracy and the right to vote. The filibuster is an undemocratic procedure, steeped in white supremacy and racism. It has to go!