Photo courtesy Eric Hynes
Joe Manchin’s leaked call and apparent softening on the question of filibuster reform has given new energy to the questions of whether and how to reform this Senate rule in keeping with historic tradition and the goal of encouraging compromise. The historic tradition is complicated. The Constitution does not mandate this rule, and both James Madison and Alexander Hamilton wrote about how dangerous it would be to require supermajorities for decision making in Congress. In 1805, Aaron Burr suggested dropping the rule about how to end debate on the Senate floor, as he was trying to simplify the Senate rules as a matter of bureaucratic housekeeping. At the time, it made very little difference in Senate procedures, until some senators in the minority realized they could use it to delay votes indefinitely.
Southern states’ rights advocates like John Randolph of Roanoke and John C. Calhoun used the filibuster beginning in the late 1830s to obstruct measures they thought would unfairly benefit industry in Northern states. But it was not until after the Civil War that the filibuster began to be used very frequently. In the Jim Crow era, it became an important tool of southern Senators trying to protect segregation. Political scientists Sarah Binder and Steven Smith identified 30 bills that were killed by filibusters between 1917 and 1994. Half of them were civil rights acts, including anti-lynching measures and prohibition of poll taxes and housing discrimination. Other measures, like the 1964 Civil Rights Act, passed only after overcoming filibusters by segregationist minorities in the Senate. Far from embracing the “tradition” of the filibuster, the Senate has tried repeatedly to eliminate or modify it. It appears that eliminating it is not possible now, but several opponents of completely eliminating the filibuster have expressed willingness to reform the current practice. There are several ways the filibuster could be modified to enable the Senate to move forward on more bills:
Ban on particular bills. Filibusters could be banned on particular bills. There could also be a rules change to forbid filibustering the motion to proceed on a bill so that floor debate would be ensured.
The Byrd Rule. The Byrd Rule, which limits the kinds of issues that can be decided through the budget reconciliation process, could be more selectively enforced, allowing a broader range of bills to be passed through reconciliation (which requires only a simple majority). This is how the Affordable Care Act and the Tax Cuts and Jobs Act of 2017 were passed.
Talking Filibuster. Senators who oppose a measure could be required to stay on the floor and actually debate (restoring the “talking filibuster”). Alternatively, they could at least be required to be present in the chamber to prevent cloture. These kinds of measures are opposed by many senators because they often leave Washington to work or campaign in their districts, and this would make their schedules less predictable.
Requiring 40 votes to continue debate. Another possibility would be to flip the rule so that rather than requiring 60 votes to end debate, it would require 40 votes to continue it. That is, 40 members of the minority party would have to be present and vote to continue the filibuster. Rather than the situation we have now, where a senator can simply have a staffer send an email announcing her intent to filibuster, this would require a significant and sustained effort to block legislation favored by the majority.
Undo 1975 change. Another possibility would be to undo a change made in 1975. According to political scientist Norm Orenstein, “for many decades, the requirement to stop debate and move to a vote, in the Senate’s Rule XXII, was two-thirds of senators present and voting. The Senate changed the rule to three-fifths of the entire Senate. On the surface, it was a change to make ending filibusters easier. But it actually raised the bar.” If the Senate went back to the “present and voting” standard, the majority could continue debate around the clock, and members of the minority would have to stay in the chamber in case there was a vote. In this scenario, the number of minority members required to prevent cloture would change based on the total number of Senators present and voting, rather than as a fixed fraction of 100 senators.
While these varied possibilities may seem confusing, in this case, complexity is a virtue; there are many options for respecting the spirit of the filibuster while reforming it to allow for a better-functioning Senate and achieve the stated goal of encouraging compromise.
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