Sunday, March 28, 2021

034 The Erickson Report for March 25 to April 7, Page 2: A Longer Look at the filibuster

034 The Erickson Report for March 25 to April 7, Page 2: A Longer Look at the filibuster

Next up, we turn to an occasional feature called A Longer Look, where we take a somewhat deeper dive into a topic that we normally do. In this case, the topic is the filibuster.

Because once again, the filibuster has moved into the Senate spotlight. So I'm gong to offer a few thoughts on the topic, after we first run through some history.

According to citing that wonderful volume the OED, the word filibuster is a linguistic corruption of the 18th century word flibustier, referring to pirates who pillaged the Spanish colonies in the West Indies. By the mid-1800s it had become filibuster and taken on its current political meaning.

It exists in the Senate and not the House because of a Senate rule that says once a senator is recognized on the floor, they may speak on an issue without being impeded by anyone.

That was the unintended consequence of an 1805 proposal by then-Vice President Aaron Burr, arguing that the Senate shouldn't be burdened by unnecessary procedural rules. In 1806, the Senate adopted his idea to drop a rule about forcing an end to debate because it was so rarely used.

And so the filibuster was born and it didn't take long for minority party senators to realize the power this gave them. The filibuster has been contentious ever since.

The first successful filibuster was in 1837, when a group of Whigs who opposed President Andrew Jackson used it to prevent his allies from expunging a resolution of censure against him.

Despite various attempts to reform it, the filibuster remained intact until 1917. Furious at a filibuster of his proposal to arms merchant ships against German U-boats during the early years of World War I, President Woodrow Wilson denounced what he called a “little group of willful men” who had “rendered the great Government of the United States helpless and contemptible.” He rallied public support sufficient to get the Senate to adopt Rule 22, which authorized a two-thirds vote to invoke “cloture,” or official closure to debate.

That was the status until 1975, when in the wake of Southern senators filibustering the Civil Rights Act of 1964 for a total of 57 days, the Senate cut the number of votes needed to invoke cloture to 60. Unfortunately, while certainly an improvement, it was a weaker reform than it seemed because it also changed the standard from 2/3rds of those “present and voting” to 3/5ths of those “duly chosen and sworn,” which unless there are vacancies means 60. Suppose there was a cloture vote today in the Senate, not everyone voted, and the tally was 59 yes to 29 no. Under the old standard, cloture is invoked. Under the new standard, it is not.

Since 2013, the rules have said that executive-branch Cabinet appointments and judicial nominations below the Supreme Court can't be filibustered; since 2017 those can't be, either, for which we can thank Fishface McConnell, who forced through the change because it was the only way he could get Neil Gorsuch onto the Supreme Court.

Which is where we stand now, as the pressure to kill or at least wound the filibuster gains ground in the wake of the GOPpers making the filibuster part of their standing operating procedure. Getting rid of it entirely appears to be a non-starter with both Joe "He-who-must-not-be-named" Manchin and Kyrsten "Thumbs-down" Sinema openly against it. The question them becomes how far can reforms go.

Okay. So with that background, what would I do about the filibuster?

You may be surprised to hear me say that I would be reluctant to eliminate it entirely. I think that way because I can conceive of situations where conscience can be a significant factor - declaring war, for example, or, since we never actually declare war any more since that would involve Congress actually being responsible for it, passing "Authorizations to Use Military Force." Expanding the federal death penalty would be another example. Anyway, I can conceive of cases where conscience is involved enough that it should take more than a bare 51-49 (or 51-50) majority to pass that bill.

But I would make several changes. I would, for one, drop the number needed to invoke cloture to 53, maybe 52. I would also go back to the "present and voting" standard, so the rule would say that invoking cloture requires 53 votes or 3/5ths of those present and voting, whichever is less.

I'd also support one helpful but essentially milktoast proposal, which is to go back to the so-called "talking filibuster," requiring the senator doing the filibustering to actually stand in the Senate well and hold the floor. During the Obama years it became usual for some GOPper to say "I'm going to filibuster this" followed by a quick cloture vote failing to get the 60 votes and the matter being dropped without anyone actually having to do anything. Lindsay Grahamcracker says he doesn't care, he would - his words- "talk until I fall over" to block any expansion of voting rights, which is something I and a lot of other progressives would look forward to seeing.

Related to that, I would also require that anything said during such a talking filibuster must be germane to the issue at hand. If a senator wandered from the issue, the Senate could by a simple majority vote require that senator to cede the floor. Admittedly, "germaneness" leaves a lot of wiggle room - during his infamous filibuster against the Civil Rights Act of 1957, Strom Thurmond read from the US Criminal Code and the voting laws of 48 states, all of which are arguably germane - but it does give some leverage against low-grade obstructionism.

Incidentally, I've seen some people argue that a talking filibuster could make things worse because it would prevent any other business from being addresses. But that concern is entirely misplaced: Another change that was made in the early '70s was to allow more than one piece of legislation to be on the floor at a time. Which means that if some bill is being filibustered, the Senate could simply switch to another bill, saying in essence "we'll get back to this one later." The idea that a talking filibuster could bring the Senate to a complete stop for, as one reporter put it, "days or even weeks" is just flat out wrong.

I would also rule that only the final passage of a bill or an amendment could be filibustered. No more trying to filibuster every procedural vote, of which any bill will see several.

Finally, an idea that I like and would be the most effective short of ending the filibuster outright - which of course also means it is the least likely to be adopted - comes from Sen. Jeff Merkley. He proposes to shift the burden away from those looking to stop a filibuster to those who want to continue it. Instead of needing 60 votes to stop debate by invoking cloture, it would take 41 votes to keep debate going. The difference is that it would require those who want to block the bill being filibustered to keep 41 senators in or immediately available to the Senate chambers the whole time, day and night, to protect against a cloture motion.

Whether any of that or any other reform happens remains to be seen, of course, the process of which will also reveal how serious the Democratic leadership in the Senate is about the agenda they claim to be supporting by how much pressure they bring on Manchin and Sinema - or we find, as I frankly expect we will, that maintaining the majority more important than actually getting anything of lasting importance done.

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