Say what?
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Dear Leading Ladies,
The Senate filibuster — and whether it serves to advance or stymie democracy — is a hot topic of debate these days. Where you land in the argument frequently, but not always, coincides with your political party. Still, the issues and ramifications deserve reflection and consideration.
Where did it all begin?
“While there were relatively few examples of the practice before the 1830s, the strategy of ‘talking a bill to death’ was common enough by mid-century to gain a colorful label — the filibuster. Derived from a Dutch word for “freebooter” and the Spanish “filibusteros” (to describe the pirates then raiding Caribbean islands) the term began appearing in American legislative debates in the 1850s,” according to senate.gov.
From then on, there have been periodic demands for “cloture,” or rules for curtailing the endless discussion and bringing an issue to a vote. In 1917, a rule was adopted that called for discussion to be closed with a two-thirds vote in the Senate. Over the next several decades, that vote would be achieved only five times. In 1975, the necessary votes changed to three-fifths; in the 2010s, it was reduced to a simple majority. Historically, filibusters were popular among Southern senators who opposed civil rights legislation and anti-lynching laws. Filibusters are still invoked to block legislation in the Senate.
The simple majority is a ruse
So how does talking and talking and talking keep a bill from getting passed? “When a senator or a group of senators introduces a new bill, it goes to the appropriate committee for discussion, hearings, and amendments. If a majority of that committee votes in favor, the bill moves to the Senate floor for debate,” according to the Brennan Center for Justice.
But here’s the rub. Once a bill gets to a vote on the Senate floor, it requires only a simple majority of 51 votes to pass after debate has ended. Before it can get to that vote, however, it takes 60 votes (a supermajority) to cut off debate, a higher and more difficult benchmark to reach. Therein lies the strength of the filibuster to stop legislation in its tracks. It should be noted that there have always been exemptions to the supermajority rule, such as for presidential appointments and judicial nominees, most recently including Supreme Court nominees.
Silent filibusters count (really!)
Remarkably, and notably, the endless discussions on the floor of the Senate need not be heard. They can be threatened and still have the same impact. It requires at least 41 Senators to threaten action and the majority leader to then refuse to take a vote.
What’s new with filibusters?
Use of the filibuster has increased in the past few years, so that there have been more than 2,000 since 2017. It is clearly not a relic of the past. Best known for its use to forestall civil rights legislation, the filibuster is enjoying a resurgence as a tool to stop bills meant to ensure equal access to voting for all Americans.
What do filibuster detractors say?
Critics believe that the Senate has been compromised as a law-making, governing entity and as a place for meaningful debate because of the ever-looming filibuster. The critics also point to presidents invoking more executive power and decision-making as a way around the inefficiency of the Senate caused by the filibuster, thereby upsetting the balance of power that defines our government. Furthermore, the filibuster promotes the unfair representation of small and large states, giving those with small populations the same power to obstruct legislation as those with large populations.
What do the filibuster’s supporters have to say?
The filibuster, according to Ballotpedia, “promotes compromise on legislation”; “provides constraint on majority power”; “supports public confidence in American governance”; and “reinforces the structure of the Senate.”
What are the options?
The filibuster could be outlawed, though the process would be arduous and fraught with disagreement, demanding a supermajority to pass, no doubt. It has been suggested that alternatives might be easier to enact, such as decreasing the number of votes necessary to end a filibuster or the time to invoke cloture and hold a final vote. More policy issues and bills might also be exempted from the filibuster.
Who knew that a word with Dutch and Spanish roots, and with meanings that relate to freebooters and pirates, would come to describe a practice among American politicians of talking more and doing less?
We hope you are safe and well.
Therese
Judy
Mary
Beth
Leading Ladies Executive Team
ladies@leadingladiesvote.org