The Filibuster - What's Happening?
The idea of making lengthy speeches to disrupt and delay the passing of legislation has been around since Ancient Rome, but the U.S. Senate have made this a frequently used tactic and have created a new form of "stealth" filibusters that often leaves Congress at a complete standstill.
The name “filibuster” comes from the Dutch word for “pirate” because the filibuster is, in essence, a hijacking of debate and has become one of the most controversial traditions in American politics.
One of the earliest uses of the filibuster was by the Roman Senator Cato the Younger who would often speak continuously until nightfall to stall a vote. Often referred to as “talking a bill to death”, the main purpose of the filibuster is a tool of the minority to delay a vote that they know the majority will win but these days, just the thought of a filibuster, is enough to create gridlock. It’s important to note that the U.S. Constitution doesn’t specifically address the filibuster. Although some of the framers made clear that they supported majority rule (including Alexander Hamilton, who described the minority veto as “a poison” in the Federalist Papers), the Constitution left it up to lawmakers to set the rules that would govern their chambers.
In the early days of the Great American Experiment, filibusters regularly tied up both chambers of Congress, but in 1811 the House enacted rules to limit debate. The Senate, a smaller body (composed of larger egos), defeated all attempts to restrict debate for another 106 years. Consequently, the Senate frequently found itself at the mercy of a small minority (or by one member who liked the sound of their own voice).
The tactic of using long speeches to delay action on legislation appeared in the very first session of the Senate in 1789 when Pennsylvania Senator William Maclay wrote that the plan was “to talk away the time, so that we could not get the bill passed.” As the number of filibusters grew in the 19th century, the Senate had no formal process to allow a majority to end debate and force a vote on legislation or nominations. This led to the first demands for what we now call “cloture,” a method for ending debate and bringing a question to a vote. In 1917, with frustration mounting and at the urging of President Woodrow Wilson, Senators adopted a rule (Senate Rule 22) that allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. This rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, however, filibusters remained an effective means to block legislation, since a two-thirds vote was difficult to obtain.
Over the next four decades, the Senate managed to invoke cloture only five times. In 1957, South Carolina Senator Strom Thurmond set the current record for the longest continuous filibuster by talking for 24 hours and 18 minutes to try to prevent passage of the Civil Rights Act of 1957. Thurmond’s efforts failed, however, and the bill became law, creating a federal commission on civil rights and some voting rights protections.
In 1964, a 57-day filibuster was finally broken by a Senate call for a cloture vote that was going to be a close call. A California Democrat Senator, who was dying of brain cancer with a voice too weak to be heard, was wheeled on to the Senate floor where he slowly, and painfully, lifted his hand and pointed to his eye signalling his “aye” vote. The “ayes” won and for the first time in history, the Senate voted to break a filibuster on a civil rights bill. Nine days later, the Senate passed the landmark law that ended segregation.
In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) of senators voting to three-fifths of all senators duly chosen and sworn (60 of the current 100 senators). Today, filibusters remain a part of Senate practice, although only on legislation. The Senate adopted new precedents in the 2010s to allow a simple majority to end debate on nominations.
In the divisive era that we currently face, where Congress is reduced effectively to 2 main parties at continuous loggerheads and representatives who predominantly vote on party lines, senators can delay or block a bill simply by signalling their intent to filibuster. The risk that 41 senators will refuse to vote for cloture on a bill is enough to keep it off the floor with party leaders, instead of risking a protracted debate, often waiting to introduce legislation until it has enough support for cloture. This does nothing but delay important legislation from even reaching the floor.
Although I can understand where the filibuster originated and the benefits of ensuring legislation is adequately debated and minority voices heard, the filibuster, as it stands, has now gone beyond ridiculous. There have been crazy examples where (for example) Democrats threatened to filibuster, and Republicans responded by threatening to filibuster the filibuster (the anti-filibuster filibuster). On that occasion, the Republicans filibustered for 30 hours to protest the Democrats’ plan to filibuster. This anti-filibuster filibuster outraged the Democrats so much that they responded by filibustering with Harry Reid of Nevada running an anti-anti-filibuster filibuster for 8 hours which even included recipes for goulash, advice on how to keep rabbits out of the garden and a reading of six chapters of his book. Do we look forward to evolving to anti-anti-anti-filibuster filibuster filibusters in the future?
The Senate could end all filibusters by simply voting to amend its rules. Periodically, a senator proposes such a change, but the proposal inevitably fails because deep down, senators love the filibuster. Donald Ritchie stated in 2010 that: “Asking a senator to speak for a long time isn’t a punishment. They love to do that.”
Whenever the Senate changes majority power, there are calls for reform of the filibuster. Some suggest rewriting the Senate’s rules to lower the cloture threshold; others suggest requiring lawmakers to conduct old-school “talking” filibusters instead of merely threatening them. Whatever their party affiliation, critics of the filibuster are undeniably correct: The tactic is intrinsically undemocratic. But so is the Senate itself - a legislative body in which every state gets two votes whether it contains 550,000 people, like Wyoming, or 36 million, like California.
It’s unclear if the push to reform the filibuster will have any effect. After all, the filibuster still has its supporters—particularly among lawmakers who find themselves in the minority party after an election swings the Senate’s balance of power and even when in power, each fears that they may lose in the next election.
Senator Joe Manchin of West Virginia has stated on multiple occasions that he will not support getting rid of the filibuster and stated, "If you give up on democracy, if you give up on the republic, if you give up on filibuster, I tell you we're in serious problems." He is determined to not give up on the rules of the Senate and the concept of moving forward together in a bipartisan way. 10 years ago, I would have agreed with him, but the direction that the Republican party is heading at the moment with continuing the perpetuation of the Big Lie, embracing conspiracy theories and devotion to the twice impeached, former president, I fear that any chances to “move forward together in a bipartisan way” are about as likely as discovering that the cause of climate change is the global shortage of black-bearded pirates.
With a 50/50 divided Senate, and without a reform of the filibuster and cloture rules, President Biden’s agenda may be seriously impeded over the next 18 months. The Republicans may be deliberately delaying negotiating on some of the bills that are waiting to be worked on including the Infrastructure / Jobs Plan, the Families Plan, the PRO Act, the For The People Act, the John Lewis Voting Rights Act, The George Floyd Justice in Policing Act and many more incredible bills of legislation aimed at making life better for the American people in the hope that they will regain majority in the mid-terms in 2022. With the Senate currently split down the middle and with Senators consistently voting on party lines (else be ostracized by their leadership) it warrants the question of why do we even have senators? We could actually save a fortune by replacing them with automatons to cast votes according to their party as opinion and discussion seems to matter less and less.
The most important thing, often forgotten when focusing on Congress, is the will of the people. ‘We The People’ only get to have our voices properly heard through elections, be they presidential or mid-terms, but the voting electorate is made up a human beings, and a wide variety of them. On a ballot paper, we put a mark in the box against the candidate that we feel best represents us but that does not mean we agree with everything they will say and do for the duration that they hold their seat. The fact that they blindly vote in Congress on party lines is insulting to the electorate, demonstrating that they are not representing their constituents, but the will of their party leadership. Many public polls have proved that the American public want gun reform in high numbers. They want voting reform and desperately need the jobs (infrastructure) plan and the families plan but the 100 people in the Senate, disassociated from society, who hold all of our lives in their hands, care more about retaining their positions and satisfying the desires of their wealthy donors that the voices of their constituents.
All we can do, is never give up on democracy. Find the details of your local representatives and your state Congressional representatives and tell them how you feel. You don’t need to write eloquent letters on headed stationery and buy a stamp for postage. In the era of the smartphone and social media, you can reach out to your representatives in whatever way suits you to make sure your voice gets heard. There are also a number of incredible organisations that will support you by providing contact information, templates tackling common themes and help you in whatever you need.
The most important thing to remember, is that democracy belongs to us, the people. It’s not provided by government or a minority of people who ‘can be bothered’. It’s a responsibility for each and every one of us to participate in.