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Making Senators Pay a Price for Filibustering

Letting senators block bills in secret is anti-democratic and it needs to end.

March 16, 2021
Trevor Carpenter

Our demo­cracy is in seri­ous need of reform. So perhaps it’s not surpris­ing that a land­mark bill to make it happen is being blocked by an anti-demo­cratic tactic: the Senate fili­buster.

Chan­ging the rules to get rid of the 60-vote threshold for passing bills would require the cooper­a­tion of all 50 Senate Demo­crats. That includes Sen. Joe Manchin of West Virginia, who has said that he opposes abol­ish­ing the fili­buster. But the door is not entirely closed.

Manchin recently expressed open­ness to the idea of requir­ing a so-called talk­ing fili­buster and making it “more pain­ful” for those who want to stall or derail a bill. Manchin has said that he’s commit­ted to keep­ing the fili­buster in the Senate as a device that promotes bipar­tis­an­ship and delib­er­a­tion. The fili­buster, however, does­n’t do much of either right now because it no longer requires fili­bus­ter­ing senat­ors to hold the floor or explain why they are object­ing to a partic­u­lar piece of legis­la­tion.

Instead, it has become pro forma. When any senator objects to moving forward on a bill — for whatever reason — all they need do is call the cloak room and register an objec­tion. The public is none the wiser, nor, typic­ally, are their colleagues about who opposes the bill and why. What this means is that each bill now requires 60 senat­ors in favor to move forward but does not in any way facil­it­ate dialogue or efforts to reach across the aisle.

Under the Senate rules, a cloture peti­tion is the mech­an­ism by which a fili­buster can be over­come with a three-fifths vote of the body. The cloture motion was once rarely used but has come to char­ac­ter­ize how the Senate oper­ates, making it diffi­cult to enact laws without a 60-vote super­ma­jor­ity. What few real­ize is that to main­tain a fili­buster a senator does not have to hold the floor in the way made famous by Jimmy Stew­art in the 1939 movie Mr. Smith Goes to Wash­ing­ton. The film depic­ted a new senator devoted to fight­ing corrup­tion in polit­ics and portrayed the fili­buster as a tool of right­eous­ness. Sadly, its history is not only less glor­i­ous but signi­fic­antly more prob­lem­atic.

Some Amer­ic­ans mistakenly believe the fili­buster origin­ated with the Consti­tu­tion and was part of the Framers’ plan for how the Senate should func­tion. It plainly was not. Tellingly, the fili­buster did not become a rule or prac­tice of the Senate until 129 years after the Consti­tu­tion was rati­fied and unfor­tu­nately became much more preval­ent during the Jim Crow era.

Start­ing in the late 1950s, senat­ors began to use the fili­buster to thwart passage of civil rights legis­la­tion inten­ded to address the deeply entrenched racism that affected so many areas of Amer­ican life. Anti-civil rights Dixiec­rats obstruc­ted bills against lynch­ing, poll taxes, and discrim­in­a­tion in employ­ment, hous­ing, and voting.

Most notable were their fili­busters of the most signi­fic­ant civil rights bills in United States history: the Civil Rights Acts of 1957 and 1964. Then-senator Strom Thur­mond held the floor against the 1957 act without a break for 24 hours and 18 minutes. Even longer, the fili­buster against the Civil Rights Act of 1964 went on for 74 days, although it was ulti­mately unsuc­cess­ful.

But the talk­ing fili­buster as prac­ticed by these anti-civil rights senat­ors was not some­thing they were required to under­take — it was some­thing they wanted to under­take. While Dixiec­rats wanted to flaunt their racist and segreg­a­tion­ist posi­tions, today’s oppon­ents of legis­la­tion often prefer to wage stealth fili­busters. By chan­ging the rules to make them address the Senate to explain their posi­tion, reformers could force these senat­ors to face the Amer­ican public, their constitu­ents, and their colleagues. Such a change would facil­it­ate real discus­sion and true account­ab­il­ity for polit­ical posi­tions. This reform to the rules could be achieved through a simple major­ity vote, should senat­ors like Manchin follow through on this idea.

In truth, the fili­buster should simply be abol­ished to return the Senate to major­ity rule as prescribed in the Consti­tu­tion. Today, our coun­try has urgent needs. Chief among these goals must be repair of our demo­cratic systems. Millions of Amer­ic­ans support 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, which will make our insti­tu­tions respons­ive to the popu­lar will, are all embod­ied in the For the People Act. The House passed it this month, but without reform­ing the fili­buster, it will not become the law of the land and our demo­cracy will continue to founder.

However, its chances are better if Manchin facil­it­ates a change to the rules that would make the fili­buster func­tion as it has been hailed by its proponents — as a tool for bipar­tis­an­ship and delib­er­a­tion. But only if senat­ors are actu­ally required to debate and can’t hide from the consequences of their obstruc­tion.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.