The filibuster remains unchanged from last month, as it has for a couple hundred years, so the Senate didn’t act to eliminate it. The expressed original intent of the legislative filibuster was to allow a sizeable minority to have a voice when only a slim majority favored a bill. It was a creative empowerment of the minority, which has become a 21st century tyranny regardless how tiny the minority.
There are calls to eliminate the Senate filibuster and equal replies the move would destroy the fair legislative process. There are other calls to modify the filibuster in hopes its original purpose to protect the minority can be retained. Here are a few.
First, Senate rules could change the filibuster to its earlier format where senators must actually speak on the floor – now called a talking filibuster – for the entire duration of the filibuster. Currently, the simple threat of filibuster changes the course of legislative action. Unless the majority party knows it has the necessary 60 votes to override the filibuster, a vote is not even taken.
A second tweak of this would require the filibustering senator actually to debate the bill. Prior filibusters have allowed the senator to read from a phonebook, newspaper, or cookbook. It would require majority party senators in constant attendance during the filibuster to challenge the reader back on topic. This was used successfully to break the 1964 southern conservative filibuster of the Civil Rights Bill after 60 days.
A benefit from each of the first two changes is the effect on legislative action is seen clearly by the public, i.e., constituents of the filibusterers. If they are viewed as getting in the way of critical legislation, their collective opinions can motivate Senators to end a filibuster.
Third, instead of allowing the simple prospect of a filibuster to act as a virtual stoppage, the majority could require an actual vote to end the filibuster. Such votes could be called multiple times during a filibuster. That might change things because each senator would be on record; constituents could see the root causes of the legislative blockade. It’s amazing how different the outcomes are between implied support and an actual vote.
Fourth, the threshold vote to close debate (that is the basis for the filibuster) could be reduced from 60 to 55. Or keep the 60 threshold, but flip the voting procedure. Instead of requiring 60 votes to end the filibuster, the rule could require 40 senators voting to extend it. The relative numbers would be unchanged, but the onus would be put on the filibuster side to prolong it.
Failing all the intermediate options, the Senate could change its rules and eliminate the filibuster. That would take only a majority in favor. Doing away with the filibuster entirely has been called “the nuclear option” by both political parties when they were in the minority. Would it really be the end of legislative comity as we know it? Would it lead to endless procedural challenges by Sen. Mitch McConnell and the republicans? Would any business get accomplished at all?
While the filibuster remains a tool in the Senate, the House of Representatives originally had its own slightly different procedure to the same effect. It was eliminated during the 51st Congress (1889-91) through the efforts of the then-majority Republican party. At first there was worry at the possible disastrous effect on the legislative body, but a cataclysm did not occur. No “nuclear” event, a term unknown at the time. In fact, the 51st Congress became famous for the consequential legislation it passed.
That Congress reined in big business (Sherman Antitrust Act). It established land-grant colleges for Black students in the South (Morrill Act). It allowed later creation of the Forest Service under the Department of Agriculture (General Revision Act) and authorized the president to set aside forested lands within the public domain (Forest Reserve Act). It refined our federal Immigration Service (Immigration Act). It extended protection to foreign copyright holders within the US (International Copyright Act). Under the filibuster-less Congress, the states of both Dakotas, Montana, Washington, Idaho, and Wyoming were admitted to the Union.
This is not a shabby legacy for a Congress unchained from the filibuster. Think what our current Senate could do.