Filibusted: Experts say the time has come to end Senate practice

A five-and-a-half hour filibuster by Sen. Huey Long of Louisiana, caused the 74th Congress, first session, to give up the ghost, without approval of the last of the President's bill. Sen. Long, is shown as he left the floor of the Senate, and rested for the moment from his tireless efforts. (National Archives).

By Darrell Ehrlick

Even the stuffy, florid name of the procedure, “filibuster” sounds like something conceived around a table of wig-wearing Founding Fathers.

While the name has its roots in the 18th Century (with pirates nonetheless), the concept and practice in the United States Senate is much younger, not being implemented in a modern form until 1917. Known officially as “Rule 22” in an arcane set of parliamentary rules for America’s upper legislative chamber, the rule has changed and morphed into what a panel of experts has described as a “minority veto” of legislation, requiring most laws to receive 60 votes — a supermajority — rather than a simple majority of 50-plus-one.

Sponsored by the University of Chicago’s Center for Effective Government and Protect Democracy, a panel of four national experts spoke on Thursday about the history of the controversial parliamentary maneuver, its benefits, challenges and future.

Since last week’s collapse of a deal that would have created a bipartisan commission to study the Jan. 6 riots at the U.S. Capitol, and with voter laws being changed in many states, including Ohio, politicians and the public have become more vocal about repealing Senate Rule 22 in favor of simple majority rule. Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have sided with Republicans as efforts mount to end the rule among the rest of their caucus. And Sen. Jon Tester, Montana’s lone Democrat in Congress, said at an April event in Great Falls that he is still supportive of the filibuster, believing it makes for better legislation, but that he would be open to changing his stance if the filibuster continues to act as a “stonewall” to important legislation.

The practice has no origins in the founding of the nation, nor is there virtually any analog to it in other democracies, the expert panel told hundreds of online listeners during the conversation.

William Howell, Sydney Stein Professor in American Politics and the University of Chicago, said that Congress is constantly changing rules and operating procedures. For example: “reconciliation” — a process once reserved for budget bills that’s now used for a variety of legislation as a means of avoiding the 60-vote threshold.

“It’s a moving target and thinking about changing it is consistent with a filibuster,” Howell said. “We need to ask whether a rule or practice improves or enhances governance or does it produce better laws?”

He pointed out that confirmations from the executive branch or even Supreme Court justices demand just a simple majority for approval.

“There’s no evidence that it makes (legislation) better,” Howell said.

Meanwhile, the experts argued that because of the gridlock the filibuster creates, rules are stuffed into massive omnibus bills and spending becomes a race to spend a lot of money by ensuring enough votes to pass it. What is often left out, they said, is the ability of Congress — largely because of the Senate — to act on specific policy issues because of the threat of a filibuster.

The filibuster is often associated with a long, marathon speech on the Senate floor, with an exhausted Senator reading phone books or great pieces of literature until the session expires. That’s no longer the case.

The “talking filibuster” previously required all other members to be held captive while debate time was burned up. However, other rule changes have meant the filibuster has been simplified to simply raising an objection and uttering the word, which brings the process of governing to a halt.

“The filibuster guarantees an obstructionist minority can undermine the majority of Congress’ will to govern,” Howell said.

To help combat that, Kenneth A. Shepsle, George D. Markham Professor of Government at Harvard University, said the system should and could be changed.

Shepsle said there are really two distinct challenges to the filibuster — first, the idea of a minority holding up legislation it finds unpalatable. But, eliminating the filibuster would also afford unequal power to states with small populations that would allow the will of the minority to be foisted on the majority. His solution, which he’s floated in national publications like The Washington Post, is to allow filibusters to be broken not by partisan voting, but by population voting.

It would work something like this: If legislation was targeted by filibuster, a group of Senators, including the possibility of a bipartisan mix, could vote for cloture, or bring the debate to a close. The cloture vote would be tied back to the population the Senators represent for the purposes of breaking a filibuster. If Senators could form a coalition that represented a majority of Americans, the filibuster would be broken, and a vote on the actual legislation would proceed along the standard majority lines.

In these limited filibuster cloture votes, geographically large states like Montana and Wyoming, would hold considerably less power than their more populated counterparts.

Professor Gisela Sin, associate professor of political science at the University of Illinois, said that virtually no analog to the filibuster exists in most other world democracies. Most have two chambers with some power differences, but nowhere can you find a way that a minority party can stop legislation of a majority.

She said part of the outsized role the filibuster plays is because of America’s two-party system. Most other democracies have multiple parties, forcing a coalition on a nearly issue-by-issue basis. Often in those countries, Sin said, no one party even has a majority, so the efforts turn toward compromise.

However, Sin pointed out that one of the reasons the filibuster hasn’t been eliminated in a two-party system is likely because it provides an excuse both parties enjoy.

“It is in part that the majority benefits from shifting the blame to the action of the minority,” Sin said.

Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law at the University of California Berkeley, said that she believes the filibuster is unconstitutional because the framers of the Constitution already gave instances where it would take a supermajority to do certain things — like amend the Constitution, override a presidential veto or remove an executive officer. For all other legislation, she believes the framers contemplated a simple majority.

“It’s bad for the government because it prevents it from enacting policies of the voters who sent officials there to enact certain legislation,” Fisk said.

It also has the unintended consequence of giving away legislative power to the two other branches of government, the executive and the courts.

She said because of Congress’ gridlock, presidents from both parties, including both Donald J. Trump and Joseph Biden, have had to run the government by executive order, leading to a ping-ponging of rules that shift every time a different party comes to power. Moreover, courts are left to interpret laws that could be changed, modified or improved.

One area in which the panelists seemed united was that better legislation, better debate and more compromise could happen in the Senate if the filibuster was eliminated because sides tend to polarize whenever the threat is brought up, and often heavily partisan bills pass the House with the knowledge they’ll die because of a filibuster threat. This means that more “show” legislation is passed to encourage politicization and draw partisan attention than those bills aimed at governing.

“The idea that there is a monolithic Senate is still pretty foreign in the American experience,” said Shepsle. “We may be liberated by eliminating the filibuster.”