Our country is a representative democracy. Most people recognize that in a democracy the voice of the majority rules. However, in the U.S. Senate today this fundamental concept is missing. The 50-50 split in the Senate appears to have the body evenly divided with neither having a majority. However, the Democratic half represents 41.5 million more people than the Republican half. This malapportionment is exacerbated by the filibuster, which gives the Republicans the ability to block legislation, essentially translating to minority rule.
The Senate defines the filibuster as an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” With a few exceptions, a simple majority (51 votes) is sufficient to pass bills in the Senate if the vote comes to the floor. That’s where the filibuster comes in. If the minority party objects to a bill, they can filibuster it to prevent it from coming to a floor vote. In that case, the full Senate needs to vote on cloture, placing a time limit on debate before the bill comes to a vote. However, unlike other votes, a cloture vote requires 60 votes. Thus, the minority can block voting on issues to which they are opposed.
Many people picture Jimmy Stewart in “Mr. Smith Goes to Washington” and his 24-hour filibuster as the normal filibuster procedure. But according to Don Ritchie, the Historian Emeritus of the Senate, the biggest misconception about the filibuster “is that people think you have to stand up and hold the floor, by yourself, for hours, and just talk.” That is the way it used to be. Now, what is more common is the “silent filibuster” in which a single senator can simply indicate that he or she will object to the motion to proceed. By doing so, the senator triggers the need for 60 votes for cloture.
We need to quickly get back to majority rule. Now is the time to eliminate, or at least revise, the filibuster. We need to get Sen. Joe Manchin, Sen. Kyrsten Sinema, and any other moderate senator to vote to eliminate, or at least modify, Senate Rule 22 – the cloture rule. Here are some possibilities on how that can happen.
Recently, Manchin said that, although he does not want to eliminate the filibuster, he is open to modifying it. He explained on Fox News that “it really should be painful and we’ve made it more comfortable over the years.” He is willing to return to the Jimmy Stewart type of filibuster in which the minority senator would actually have to speak and remain standing for the duration. Also, he stated that he would consider having the minority always have 41 senators in the chamber to continue the obstruction. If the talking stops or there are fewer than 41 senators present, the vote on the issue would return to a simple majority.
Another possibility is one that Sen. Mitch McConnell used to prevent filibustering judicial nominations: the “nuclear option,” which is a change of the Senate rules by a vote of 51 senators. In this scenario, Senate Majority Leader Chuck Schumer makes a nondebatable motion to bring a bill up for a vote. He then raises a point of order that cloture can be achieved with a simple majority vote. Then the presiding officer — Vice President Kamala Harris or the president pro tempore Patrick Leahy or another designated senator — would rule against the point of order. But that rule could be appealed and overturned by a simple majority vote. The effect would be that filibusters of legislation would no longer be the rule and all motions and votes also could be passed with a simple majority. Recently Manchin has stated that he’d much prefer bipartisan cooperation to changes in the filibuster, but time and Republican recalcitrance may affect his final vote.
The Senate could also lower the number of votes needed to invoke cloture to a number less than 60 but more than a simple majority. Some proposed options include making the new threshold equal to the number of senators in the majority caucus; making it 55 votes, which is the average size of the majority since the expansion to 100 seats in 1959; or a proposal brought forth in 1995 by Sen. Tom Harkin (D-IA) and Sen. Joe Lieberman (D-CT), progressively lowering the threshold each time a motion to end debates fails until it reaches the number of a simple majority. Harkin put forth the same proposal in 2013.
Whether the filibuster gets eliminated or modified, change needs to be made now. The future of one of the strongest voting rights pieces of legislation ever proposed, H.R.1 (S.1 in the Senate), the For the People Act, is in jeopardy as is the future of democracy.
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