Does an arcane Senate rule put democracy at risk?

The Examiner

Filibuster is a word that is not found in the United States Constitution. It is a concept unique to the United States Senate and has been in existence since 1837. It is a parliamentary procedure to prevent a measure from being brought to a vote. 

Bob Buckley

Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" – 60 out of 100 – vote to bring the debate to a close by invoking cloture under Senate Rule 22. The Senate's power to establish rules is derived from Article One, Section 5 of the Constitution that provides: "Each House may determine the rules of its proceedings ...."

The first Senate filibuster occurred in 1837, but the defining moment came in 1841 during debate on a bill to charter a new national bank. Senator Henry Clay tried to end the debate, but Senator William R. King threatened a filibuster, saying that Clay "may make his arrangements at his boarding house for the winter." Other senators backed King, and Clay abandoned his attempt to end debate.

If you have ever watched the movie, “Mr. Smith Goes to Washington,” you can get an idea of what is involved in a filibuster. Jimmy Stewart plays a young senator engaging in a filibuster to block legislation. He spends over 24 hours on the floor of the Senate using the filibuster. It is considered one of the best movies of all time; it won one Academy Award and was nominated for 10 more.

Until 2013, the filibuster was periodically used to block judicial appointments. However, in 2013, the Democratic majority in the Senate had wanted to fill four vacancies on the Court of Appeals for the District of Columbia, perhaps the most powerful and influential court other than the Supreme Court. The Republican minority of 48 Senators attempted to block the appointments with the threat of filibuster. The Democrats voted 52-48 to reinterpret the words “three-fifths” in Rule 22 to mean “simple majority.” Senator Orrin Hatch, a Republican from Utah, later said that the Democrats made 60 equal 51.

In 2016, the Republicans controlled the Senate and blocked the appointment of Merrick Garland to the Supreme Court. After Justices Antonin Scalia and Ruth Bader Ginsberg died, and Justice Kennedy retired in 2018, President Trump was able to make three appointments to the United States Supreme Court, utilizing the “nuclear option” after a rule change was passed by the Republican-controlled Senate. The Democrats should have seen in 2013 that sauce for the goose was sauce for the gander as the Republicans utilized the nuclear option to not only replace three Supreme Court justices but also allowed the Republicans to approve over 174 district judges and 54 appellate judges.

There is now a debate over ending the filibuster on legislation. The House of Representatives recently passed House Bill 1, a broad bill that would create automatic, same-day and online voter registration nationwide. It includes some measures that would require states to overhaul their registration systems. It would expand absentee voting, limit the states' ability to remove people from voter rolls, increase federal funds for election security and reform the redistricting process. 

Democrats argue that efforts are underway in Republican-controlled state legislatures to tighten voting laws after the 2020 election. The proposed legislation also re-enacts key provisions in the Voting Rights Act of 1965 that protected minorities from discrimination in voting. The Supreme Court invalidated these provisions, proclaiming that they were no longer unnecessary, in 2013 in Shelby County v. Holder.

Republicans argue that the anti-discrimination provisions are unnecessary and that the legislation will unduly interfere with state election laws that should remain under the control of the individual states. The bill is now in the Senate and is subject to the 60-vote filibuster rule that will essentially block the legislation. Thus far, the nuclear option has only been utilized to appoint judges.

Mitch McConnell, the Senate minority leader, has threatened the Democrats if they change the legislative filibuster rule. Progressive Democrats have indicated that McConnell has vowed to block any legislation by Democrats even though Democrats control the House of Representatives and now have 51 votes in the Senate if the vice president breaks a tie. Much legislation of both parties has been blocked by filibuster or the threat of filibuster.

Two Democratic Senators, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, say they want to keep the filibuster, emphasizing that it drives compromise. Without their votes, the rules will not change as any change to the rules would require 51 votes. Senator Manchin has proposed that some amendments to the rules should be made. One rule favored by many is a rule change that requires senators to actually take the floor and remain on the floor to filibuster like Jimmy Stewart did in “Mr. Smith goes to Washington”.

Mitch McConnell has promised a “scorched earth” if the Democrats eliminate the filibuster so it can pass House Bill 1. McConnell said the partisan gridlock of the Trump and Obama eras would look like "child's play" compared to what is to come. Many believe democracy hangs in the balance. It is an important issue to both parties. We should all be watching the debate.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.