Within days of the passing of Supreme Court Justice Ruth Bader Ginsburg, congressional Democrats threatened three forms of retaliation if the president were to select and the Senate dared to confirm her replacement prior to the November presidential election.
These retaliatory acts include: packing the Supreme Court with leftist jurists, doing away with the Electoral College, and eliminating the filibuster--a historic Senate procedural tool used by both parties as a check against majoritarian tyranny.
Before they go down that road, however, they should heed Senate Majority Leader Mitch McConnell's warning from a 2019 New York Times editorial: “A Democratic assault on the legislative filibuster would make the [Supreme Court] nomination fights look like child’s play.”
Filibuster Flip Flops
At the funeral service for Georgia Congressman and Civil Rights leader Rep. John Lewis, former President Barack Obama delivered a lengthy, divisive political speech where he called for eliminating the filibuster, a controversial Senate practice historically used to prevent a measure from being brought to a vote, usually by extending debate.
Obama called the filibuster a “Jim Crow relic,” standing in the way of his party’s efforts to “secure the God-given rights of every American.”
However, his current position on the filibuster is a complete reversal of his previous stance on the issue. As a U.S. Senator in 2005, Obama argued strenuously against efforts to eliminate the filibuster.
When asked about the filibuster recently, former Vice President and Democratic party nominee Joe Biden disagreed on the urgent need to do away with it. However, when reminded of Obama’s comments on the filibuster, he promptly backtracked, saying, “…if there's no way to move other than getting rid of the filibuster, that's what we’ll do."
Biden’s running mate Kamala Harris previously vowed to eliminate the filibuster to ensure passage of the Green New Deal.
Over the years, politicians from both parties have taken a stance on the filibuster, both for it and against it. President Donald Trump for example tweeted against it, calling it “ridiculous.”
Yet in 2010, Senator Bernie Sanders (I-VT) conducted an eight-and-a-half hour filibuster of bipartisan tax deal and awkwardly attempted to characterize it as something other than a filibuster.
"You can call what I am doing today whatever you want," Sanders said. "You can call it a filibuster. You can call it a very long speech."
There are several ways to completely eliminate or significantly modify the filibuster, which are explained in detail in the Brookings article “What is the Senate filibuster, and what would it take to eliminate it?”
However, Molly E. Reynolds (Brooking’s Senior Fellow, Governance Studies) considers it unlikely the Senate will lose the filibuster anytime soon.
“Abolishing the filibuster might be hot talk on the campaign trail," he said. "But, ultimately, choices about Senate rules are the responsibility of the Senate and not presidential candidates.”
Nevertheless, criticism of the filibuster is heating up now that Obama, Biden, and Harris are leading the charge.
Other progressive firebrands such as Elizabeth Warren are also agitating for its demise. While campaigning for the Democratic nomination for president in 2019, Warren twice falsely claimed that a filibuster prevented passage of an immigration bill in 2013.
Tsunami of Federal Overreach
Clearly, Democrats anticipate taking the White House and the U.S. Senate in the 2020 election. Even if they pick up a few seats in the Senate, they fear that Republicans could still use the filibuster to stall or derail their progressive agenda.
So, Democrats are eager to remove any obstacles that could stand in their way of opening the floodgates of progressive legislation. If that means kicking the filibuster to the curb, it’s a sacrifice they’re willing to make, even if in future scenarios the filibuster could work to their advantage.
If the filibuster falls by the wayside early in a progressive Democratic administration, the Convention of States should be prepared for a tsunami of federal overreach that would spill into virtually every aspect of daily life:
- The Green New Deal would sail through Congress, bringing with it draconian restrictions on energy, travel, consumerism, and personal freedom.
- Medicare for all, including for those here illegally, would become a reality, and the burgeoning bureaucracy tasked with managing everyone’s health care from cradle to grave would require an ever-expanding source of revenue, which could only be funded by raising taxes.
- The unelected administrative state would grow exponentially, generating a dense cobweb of new rules and regulations, as well as the means to enforce them.
- The already unmanageable national debt would skyrocket to pay for it all. Fiscal responsibility and a balanced budget would become unattainable goals in a nation faced with tens of trillions of dollars in debt.
Without the safeguard of the filibuster, spending and overreach legislation could be passed with impunity, and the need for a Convention of States would be greater than ever before.
Origin of the Filibuster
The filibuster dates to ancient Rome, where Cato the Younger would take the floor and speak until sunset, which signaled the end of the Senate’s session.
Fast forward to the 19th Century, and we find Aaron Burr suggesting that the U.S. Senate remove the “previous question motion,” a rule that automatically curtails floor debate in the Senate.
This opened the door for long-winded speechifying, or filibustering, but the tactic was rarely used. The word “filibuster” was applied to the practice in the 1850s (filibuster is derived from a Dutch word for a type of pirate).
However, by 1917 the Senate adopted Rule 22 which allowed it to end debate with a two-thirds majority vote (later changed to three-fifths, or currently 60 of the 100 Senators). This action is known as "cloture." Rule 22 was first used in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Use of the filibuster really took off in the mid-20th Century.
Fans of classic films may recall Jimmy Stewart’s portrayal of Senator Jefferson Smith in Mr. Smith Goes to Washington, where Stewart’s character embarks on a prolonged filibuster and collapses on the Senate floor.
Others may remember the filibuster as a tool used by South Carolina’s Democratic Senator Strom Thurmond, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957, the longest filibuster on record.
However, senators no longer need to launch a verbal filibuster where they make long speeches, read names from the phone book, or rely on other antics like the colorful 1930s Senator Huey P. Long, who read Shakespeare and entertained the Senate audience with recipes for Southern Fried Oysters and “Potlikker."
According to David Repass--a retired professor of political science with a specialty in American government--wrote in The Atlantic:
“In recent years, cloture has been turned upside down. Now all the minority needs to do to prevent a bill from even reaching the floor is simply to threaten to filibuster. Debate never begins. Real filibusters almost never take place. This is called a ‘silent’ filibuster -- an oxymoron if there ever was one.”
In addition, the concept of a “two track approach,” emerged, where senators can filibuster a measure, but the normal business of the Senate continues as usual without all the theatrics on the Senate floor.
Is it Constitutional?
Critics argue that overuse of the filibuster created a situation where it’s almost impossible to get anything passed without a supermajority of 60 votes in the Senate, rather than a simple majority of 51.
However, David Boaz of the Cato Institute notes,
“The United States is a republic, not a majoritarian democracy. The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it... The Founders didn’t invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn’t be too easy to pass laws, and there’s a good case for requiring more than 51 percent in any vote.”
Proponents of the filibuster often point to George Washington’s possibly apocryphal comment to Thomas Jefferson: “We pour legislation in the senatorial saucer to cool it,” which characterizes legislation that emerges from the House as hot from the pot, requiring the need to pour it into the Senate’s saucer to cool down before consumption.
There’s also the notion among some scholars and historians that the Founders assumed the Senate would be a slower, more deliberative institution than the House and would not be averse to extended debate.
Regardless of the Framers intent however, they included Article 1, Section 5, in the Constitution, which states, “Each House may determine the Rules of its Proceedings...” thereby giving the Senate the constitutional authority it needs to create (or eliminate) the rules that allow for a filibuster.
Proponents of the filibuster Richard A. Arenberg and Robert B. Dove, co-authors of “Defending the Filibuster: The Soul of the Senate,” argue that far from being an impediment, the filibuster can be used by both parties to:
- protect the rights of the minority in American politics,
- assure stability and deliberation in government, and
- help preserve constitutional principles of checks and balances and separation of powers.
Despite its controversial heritage, the filibuster remains one of the most powerful tools for protecting the minority voice in the Senate and ensuring that all sides are heard on every issue, which is precisely why so many progressives are so eager to eliminate it.
Final Thought
Feeling stressed about the fate of the filibuster and the results of the upcoming election? Consider “Boondoggler Bourbon” from the Filibuster Distillery as an appropriate libation to help keep things in perspective on Election Day, November 3, 2020.
