At the July funeral service for Rep. John Lewis, President Barack Obama called on elected leaders to fulfill the civil rights legend’s vision of expanding and protecting our democracy for all Americans. He recognized the obstacles but insisted that we move forward to challenge failed practices and old policies that have stood in the way. “And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American,” said Obama, “then that’s what we should do.”
With Democrats Raphael Warnock and Jon Ossoff just sworn in as Georgia’s new senators, the question of abolishing the filibuster is percolating again, though it would require all 50 Senate Democrats to vote in favor of elimination, something that may prove impossible. The Inquirer turned to two legal experts to weigh in: With Democrats back in control of the Senate, is it time to abolish the filibuster?
Yes: Abuse of the filibuster means just one senator can stop legislation.
By Caroline Fredrickson
Our democracy has been put to the test. President Donald Trump’s unfounded attacks on the legitimacy of the 2020 presidential election, active efforts to subvert the counting of legally cast votes, and Jan. 6’s violent insurrection in the U.S. Capitol have all shaken the core of our system. As we strive to rebuild and strengthen democratic processes, not to mention repair a broken economy and attend to the critical health-care needs of all Americans in a pandemic, we need a Congress that can function — especially in these core areas.
But right now, it cannot because of the ability of just one senator to stop legislation necessary for all of us. The filibuster was designed and used for decades to thwart civil rights legislation. In recent years, its use and abuse has only grown. Sixty votes are routinely needed in the Senate for even the most minor matters, making it nearly impossible to legislate in the national interest or find common ground. An obstreperous minority has the ability to grind the Senate, and Congress more generally, to a halt. To a greater degree than is commonly realized, this is a relatively new phenomenon.
During the Obama administration, Senate Republicans took obstruction to a new level, using the filibuster more than ever in history. But the use of the tactic had been climbing even before Obama became president, prompting recent presidents of both parties to use executive orders and other administrative tools to circumvent Congress. The Senate is already minoritarian because of the overrepresentation of small and rural states in the body. For example, California, with 39 million people, gets two senators in Washington, the same as Wyoming, Vermont, and Alaska, each of which is home to fewer than a million people. And by 2040, given projected population growth, two-thirds of Americans will be represented by just 30% of the Senate. Given that the executive branch has increasingly moved away from legislative initiatives because of Senate obstruction, the filibuster continues to undermine a real democracy.
“If we are to take the steps that are urgently needed to save our democracy, we at long last must abolish the filibuster.”
Today, our country has urgent needs. As we honor the Rev. Dr. Martin Luther King Jr., we need to ensure that the struggle for democracy and racial justice is at the heart of our politics. Chief among these goals must be the repair of our democratic systems, which, this pandemic and the presidency of Donald Trump have revealed, are so evidently in need of renewal. Millions of Americans are calling for major reforms to ensure our democracy continues to function — overhauling our elections, creating stricter ethics rules for elected and appointed officials, limiting the poisonous influence of money in politics, and ensuring that voters choose their elected officials rather than the reverse. These reforms will make our institutions responsive to the popular will.
Under current Senate rules, however, a minority can stymie efforts to fix our broken system. Not slow those reforms, not deliberate, not debate, but simply block them. For that reason, democracy advocates and their elected champions must demand that the filibuster be eliminated. If we are to take the steps that are urgently needed to save our democracy, we at long last must abolish the filibuster.
Caroline Fredrickson is a senior fellow at the Brennan Center for Justice, a visiting professor at Georgetown Law, and author of several books, including “The Democracy Fix” and “Under the Bus: How Working Women Are Being Run Over.”
No: Reform the filibuster instead of killing it.
By Mark Strand
Emboldened by their double victory in Georgia, the new Democratic majority in the Senate is poised to make good on its threat to do away with the filibuster. While both parties dislike the filibuster whenever they are in the majority, the wiser course of action would be to reform it.
Our Founding Fathers deliberately differentiated the roles of the U.S. House — a majoritarian body where a cohesive majority, elected every two years, can legislatively work its will — and the Senate, designed to empower the political minority by giving them tools that provide a greater say in legislation. The filibuster is one of these tools.
This tactic was not always the legislative grim reaper it is today. In the early 1970s, then-Majority Leader Mike Mansfield (D., Mont.) devised a two-track system to handle controversial bills being filibustered separate from other business. At least 60 senators have to agree to end debate and proceed to a vote, so under this system, Mansfield could move less controversial legislation while he hunted for votes on bills that were stuck.
“Reform starts with making it more difficult to conduct a filibuster by eliminating the two-track system, forcing senators to remain on the floor and taking up precious time.”
This, though, made filibustering easier for senators since they weren’t required to be on the floor talking through a filibuster, a la Mr. Smith Goes to Washington. Take away the talk-a-thon and the filibuster becomes an invisible death sentence for legislative ideas.
Reform starts with making it more difficult to conduct a filibuster by eliminating the two-track system, forcing senators to remain on the floor and taking up precious time. Senators would still use the filibuster, but they would use it much more sparingly, especially at the prospect of having to talk themselves hoarse.
Before the Senate votes on legislation, there are two important hurdles to overcome. The first is whether to proceed to debate. The second is closing debate and moving to a vote. The majority leader can ask for unanimous consent to proceed directly to debate. If that cannot be achieved, lawmakers vote on what’s called a “motion to proceed,” which can be filibustered. An important reform would be to make the motion to proceed nondebatable in all circumstances or changing the rules to impose a time limit on this debate. This would allow a simple majority to bring up bills for consideration, and senators would still have the ability to filibuster the actual bill once debate begins.
Democrats would have to employ the nuclear option to attack the filibuster. This is a highly divisive measure that flies in the face of Senate tradition by allowing a simple majority to railroad the minority by altering how the rules are interpreted. As senators who supported Majority Leader Harry Reid’s initial use of the nuclear option discovered when his successor, Sen. Mitch McConnell, used the same technique to allow simple majority votes on Supreme Court nominees, abandoning the protection of the Senate’s political minority tends to backfire, often much sooner than they think.
The Senate has long been heralded as the world’s greatest deliberative body because of the right of unlimited debate. By returning to the centuries’ old tradition of compromise, respect for the institution, and respect for one’s colleagues, the Senate can go a long way toward recovering its tarnished reputation. Reforming the filibuster would strengthen the Senate by creating an environment of comity that will never be achieved through nuking minority rights.
Mark Strand is president of the Congressional Institute, a nonprofit organization that looks at the operations of Congress and how reforms can make it effective.