Jan. 31, 2022
Many items on President Joe Biden’s agenda have already passed the U.S. House of Representatives only to be dead on arrival in the Senate. This is due to the filibuster, a Senate rule that requires 60 votes to move any piece of legislation. Recently, many Senate Democrats have been pushing to eliminate the filibuster in the hopes that some of Biden’s more partisan agenda items will finally reach his desk. But because two moderate Democratic senators, Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), have refused to go along with their party’s prevailing narrative, Senate Majority Leader Chuck Schumer (D-N.Y.) cannot get the 50 votes he needs to change the Senate rules and do away with the filibuster.
What follows is a brief explanation of what the filibuster is and why it is so important.
Article I, Section 5 of the U.S. Constitution gives the House and Senate the broad authority to “determine the rules of its proceedings.” This allows the House and Senate to determine how bills will be voted on, how committees will be assigned, how long a bill may be debated, and much more. Although the House does not allow for unlimited debate on a bill, the Senate does through a tactic known as the filibuster.
In its early days, the filibuster manifested itself through long speeches from senators on the floor. As long as a senator could stand and talk, voting on a bill or nomination would be delayed. The filibuster was used in the very first session of the U.S. Senate. Pennsylvania Senator William Maclay wrote that the “design of the Virginians was to talk away the time, so that we could not get the bill passed.”
It wasn’t until 1917, at the urging of President Woodrow Wilson, that the Senate adopted a formal process for a majority to end debate and force a vote, a concept known as cloture. Senate Rule 22 required a two-thirds majority to invoke cloture. In 1975, the threshold was lowered to three-fifths (i.e., 60 votes of 100).
Fortunately, the legislative filibuster has been preserved so that a simple majority cannot ram through legislation from the House. Last week, thanks to the efforts of Senators Manchin and Sinema bucking their party leadership, the filibuster lived to see another day. But you can count on Democratic leadership to continue berating these senators with the hopes of breaking their resolve so they can change the rules and push their agenda through the Senate with the barest of majorities.
America has a bicameral (i.e., two-chambered) legislature in order to protect two valid, competing interests. The House allocates representation based on population in order to reflect the will of the majority, while the Senate gives each of the states equal representation so that larger, more populated states would not have complete control of the legislative process.
The U.S. Senate is a fundamentally different body than when it was created in 1789. In a conversation with Thomas Jefferson, George Washington reportedly said that the Senate was intended to “cool” legislation from the House of Representatives, just as a saucer cools hot tea. The Founders realized that the directly-elected House of Representatives would be subject to sudden changes from the will of the people every two years. Therefore, they set up the Senate differently in order to “cool” those passions. Senators were originally selected by state legislatures for six-year terms with the intent that they would thoughtfully deliberate legislation to come up with something mutually beneficial to all the states rather than constantly focusing on reelection. That process lasted for over 120 years until 1913, when the ratification of the 17th Amendment provided for the direct election of senators. With the 17th Amendment, the U.S. Senate was fundamentally changed and began to resemble the House of Representatives more and more. Yet the filibuster remained as one of the distinguishing characteristics of the Senate.
The Senate has long been described as the world’s greatest deliberative body. The Founding Fathers never intended legislation and nominations to be rushed through. Rather, they envisioned a body of thoughtful and deliberate debate, a sometimes long and arduous process that would prove frustrating for both political parties but nonetheless a process that would eventually produce a mutually beneficial result for the entire country. It might be tempting for a majority party to eliminate the filibuster for short-term political gain, but to do so would remove one of the last tools that makes the Senate different from the House.
In 1831, a young French aristocrat named Alexis de Tocqueville took a nine-month trip to the United States to discover what made America unique from other nations. He compiled his observations in his book Democracy in America. In it, de Tocqueville spoke highly of the American form of government and the national culture. However, he warned of what he called the “tyranny of the majority,” the inclination of whatever political party happens to be in control to push their will on the entire country. For 233 years, the U.S. Senate has mitigated the tyranny of the majority. And although the 17th Amendment significantly diluted the uniqueness of the Senate, it still remains distinct from the House, in part because the minority are given a voice through the filibuster.
In the current Senate, the legislative filibuster is the one thing preventing a radically different America. It is the one thing that will keep President Biden from signing key parts of his radical agenda. It will continue to block Democrats from passing the Equality Act, repealing the Hyde Amendment, and codifying Roe v. Wade. In short, it will stop Democrats from fundamentally transforming American government, which could then fundamentally transform America. If minority voices are to continue being heard and respected in the U.S. Senate, we must protect the filibuster at all costs.