Abolish the Filibuster? Mend It, Don’t End It

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Joe Manchin and Kyrsten Sinema have been vilified by progressive Democrats in recent months for refusing to support efforts to eliminate the filibuster to allow the Senate to pass two major voting rights bills that Republicans oppose. Democrats argue that the legislation would make voting easier and more accessible, and would restore the protections of the Voting Rights Act of 1965 that the Supreme Court gutted in 2013 in its Shelby County v. Holder decision. Opponents contend that the legislation would federalize state election procedures and would allow more opportunities for voter fraud.


While eliminating the filibuster might provide the Democrats with a short-term win, it would be a long-term disaster for the party and, more importantly, the country. But the current filibuster practice gives the minority party in the Senate the power to hold the majority hostage, which is also not good. The solution: keep the filibuster, but revise it to minimize the ability of the minority to abuse it.


There’s nothing in the U.S. Constitution that expressly speaks to a filibuster, but the source of the filibuster does lie in the Constitution in Article I, Section 5, which provides that “Each House [of Congress] may determine the Rules of its Proceedings….” Article XXII of the current Senate rules provides that debate “shall be brought to a close” only if three-fifths of the seated senators  (or 60 senators) vote to do so. Without cloture, the Senate can’t vote on most legislation.


With today’s Senate evenly split, there’s virtually no chance that a cloture vote can be successful on any matter that is the least bit controversial. Hence, many Democrats have urged Senators Manchin and Sinema to vote to eliminate the filibuster, at least for voting rights legislation. But they have refused, to the ire of progressive Democrats.


My junior high school social studies teacher taught me that the beauty of our political system is that we are governed by the majority, but with the consent of the minority. That allows us to live together politically, even where we disagree. The filibuster was but one way to force the parties to work together to compromise and get things done. Last year’s infrastructure bill is such an example.


It is also a notable exception. In recent years, the minority hasn’t consented to much. In 2013, the Democrats controlled the Senate, and Harry Reid was the majority leader. Mitch McConnell was the leader of the Republican minority, and using the minority’s power given by the 60-vote cloture rule, McConnell held up many judicial nominations to the frustration of President Obama and the Democratic majority.


So what did Reid do? Ignoring McConnell’s be-careful-what-you-wish-for warning, Reid used an arcane procedural maneuver to avoid the 60 vote requirement, enabling a vote to confirm many district and circuit court nominees by a bare majority. But Reid left the ordinary 60 vote requirement in place for Supreme Court nominees.


But then control of the senate changed in 2014 and McConnell became majority leader. With the death of Justice Antonin Scalia in February of 2016, McConnell used his then-majority power to stop the consideration of Obama’s Supreme Court nominee, Merrick Garland, contending that the nomination should be made by the next president. The Democrats were furious but powerless to move the nomination forward.


When Donald Trump became president, McConnell, taking a page out of the Harry Reid playbook, used the same arcane procedure that Reid had used to avoid the 60-vote requirement for Trump’s Supreme Court nominee, Neil Gorsuch, who was then confirmed by a 55-45 Senate vote. The Democrats were powerless to stop his nomination. Trump was later able to get Brett Kavanaugh and Amy Coney Barrett confirmed the same way – both getting fewer than 60 votes to confirm. Thus, Trump was able to place on the Supreme Court fully one-third of its members using the Harry Reid precedent, without the need for votes from Democrats.


Now the Democrats want to again use the arcane Senate practice to avoid cloture to pass the voting rights bills that they say will make the voting process fairer and more accessible. McConnell has again warned: Be careful what you wish for. While 60 votes are no longer required to confirm judges, the rule still applies to most other legislation. If Senate Democrats cause the demise of the 60-vote requirement for voting rights legislation, McConnell has said that Republicans, when they next get control of the Senate, will certainly do likewise for all legislation and will undo whatever legislation Democrats pass without bipartisan support.


The Democrats’ win might well be short-lived if Republicans capture both houses of Congress in 2022. This is no way to have a functioning government.


I’ve heard of several proposals to revise the filibuster rule that would give the minority an effective voice but without the ability to hold the majority hostage. My favorite has two components. First, require Senators who oppose legislation to stand in the well of the Senate and speak on the subject until the majority can obtain 60 votes to invoke cloture. That used to be the practice, and it should be revived. If a speaking filibuster were required, there would be fewer of them. So the filibuster would be reserved only for the most serious objections, not for every piece of legislation.


One criticism of a speaking filibuster is that it takes up valuable Senate time. (Senators would rather spend their time away from the Senate to raise money for their next election.) The second component would effectively address that criticism. Instead of requiring 60 votes to invoke cloture, the rule should require 41 votes to avoid cloture. In other words, 41 senators who oppose legislation should be required to remain in the Senate while their colleague speaks against the legislation. How many pieces of legislation will attract that kind of attention and commitment? In any case, this rule would certainly encourage the parties to try to work out their differences.


So progressive Democrats are wrong to seek the demise of the filibuster. Their win on voting rights legislation may not last long. Instead, they should work with Republicans to adopt a rule that will serve both parties well when they become the minority, as Democrats undoubtedly will at some point, maybe as early as next year.


Daniel E. Bacine

Daniel E. Bacine has been practicing law in Philadelphia for over 50 years. He has a keen interest in our legal system and the intersection of law and politics.

He is a past chairman of the Jewish Exponent, the local Jewish newspaper, and has held many positions over the years with the Jewish Federation of Greater Philadelphia. He closely follows issues involving Israel, including American foreign policy affecting Israel and the divide in the American Jewish community relating to Israel.

He is also an adjunct professor at both Drexel’s law school and Villanova’s law school, teaching a course in Complex Litigation. Before law school, he spent a year working in the Michigan legislature under a Ford Foundation fellowship.


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