Senate filibusters are for the ‘Byrds’

 

Bill Knight column for 3-4, 5 or 6, 2021

 Last week’s proposal to increase the minimum wage to $15 – supported by 61% of Americans – was removed from the stimulus package the Senate’s considering under the chamber’s “Byrd Rule,” a 1980s rule that can block pieces of reconciliation bills unrelated to revenue, spending or the debt limit through a point of order ultimately decided by the chamber’s parliamentarian.

Occurring because sponsors’ reconciliation bill would have avoided a filibuster, the situation underscores that if Democrats want to enact pandemic aid, rebuild the economy, strengthen democracy, and help the less fortunate, senators must kill the filibuster or give in to anti-majority gridlock.

The filibuster is a rule requiring a 3/5 supermajority (60 votes) to end debate, and given a Republican Party that can’t seem to rid itself of white supremacist members, that’s unlikely. A procedural alternative is the “reconciliation” process, created in 1974 and currently permitting expedited consideration of issues on revenue, spending and debt limits with a simple majority (50 plus 1).

The filibuster, which can defy not just Senate majorities but the will of the public, emerged almost by accident, and thrived under white-supremacist “Dixiecrats.” Traced to the 19^th century when an 1806 Senate vote inadvertently allowed unlimited debate, the filibuster reportedly first occurred in 1832. Nine years later Sen. John Calhoun exploited the loophole to stall a bill for weeks. Before World War I, 11 senators blocked a measure arming merchant ships, after which the Senate passed a rule to provide for a supermajority to end debate. Segregationist Southern Democrats started using it for decades to kill civil-rights reforms.

It originally required a senator to hold the floor continuously (or arrange “relays” of supportive senators), and between 1941 and 1970, it was used 36 times, according to New Yorker writer Benjamin Wallace-Wells. But in 1975 it was relaxed so there’s no one need be present to hold the floor and filibusters occur only in mornings, letting the Senate conduct business in afternoons.

Senate Leader Mitch McConnell (R-Ky.) has used it as a GOP veto; in 2009 and 2010 alone, he invoked it 91 times. McConnell in 2017 dropped Supreme Court nominations from being filibustered; four years before, Majority Leader Sen. Harry Reid (D-Nev.) eliminated judicial nominations.

But virtually everything else is vulnerable.

“Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy” author

Adam Jentleson has said, “The filibuster isn’t in the Constitution and its constant use is a relatively recent development. [It’s a way for obstructionists] to entrench their power to wield a veto over everything the majority of the country wants to do. Because of the filibuster, it’s much easier to stop things from happening than it is to pass things.”

The Founders opposed the supermajority, Wallace-Wells reports. Benjamin Franklin said, “A system where ‘the minority overpowers the majority’ would be ‘contrary to the common practice of assemblies in all countries and ages’.” Thomas Jefferson said, “It is my principle that the will of the majority should always prevail”; Alexander Hamilton said a supermajority mandate would “destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

Chicagoan Daniel Robles of the Sunrise Movement recently wrote, “We have seen bills that could have strengthened labor unions, protected the environment, created high-paying jobs, and improved campaign and lobbying disclosures fail to become law because of the filibuster by Republicans. Democrats have also used the filibuster [but] bipartisanship seems to no longer exist.”

The Senate’s not helpless, however; its rules can be changed by a simple majority vote.

“The Senate rulebook, precedent and the Constitution all agree that ultimately a Senate majority must be able to decide at any point how the body should be organized,” said Ryan Cooper, national correspondent for The Week.

That said, conservative Democrats Joe Manchin (W. Va.) and Kyrsten Sinema (Ariz.) oppose ending filibusters, apparently opting for tradition over function.

Nevertheless, Illinois Sen. Dick Durbin on Jan. 24 said he won’t let McConnell continue to obstruct with filibusters.

The filibuster mostly is a threat to halt deliberations (and a way to accuse victims of doing nothing), or it's a bluff to prevent issues from even being raised. Democrats should call McConnell’s bluff. If they have a majority, it’s “use it or lose it.”

Jentleson says, “The filibuster is a tool to preserve the status quo and makes it harder to make change.”

Since change is needed, some past Democratic supporters of the filibuster (including President Biden) say they might consider eliminating it if Republicans continue to reject compromise.

The turning point could be a bill with majority support, which could be any moment.