The Fate of the Filibuster Rule
Since the November elections, Republicans in 43 states have unleashed in a veritable tsunami consisting of over 250 bills aimed at suppressing voting. The potential damage to our democratic system that these bills could inflict is not likely to be arrested by challenges in the courts or offset by ambitious voter registration programs. This desperate effort by Republicans to remain a viable political party has prompted the House Democrats to pass two comprehensive voting rights bills which are now awaiting action in the Senate. These two bills would not only prevent the adoption of the current Republican proposals but would also roll back most of the voting suppression statutes Republicans have enacted over the past ten years. The problem is that only a change in the Senate’s filibuster rule offers any hope for their enactment into law. While the prospect of a change in the filibuster rule is very popular among progressive Democrats, most moderate Senate Democrats have remained silent on this issue and at least two (Senators Simena and Manchin) have voiced their opposition to changing the rule.
As explained in my article entitled “Confronting the Pillars of Republican Politics,” the “filibuster” or “cloture” rule (technically, Senate Rule 22) provides that debate over a pending bill can only be terminated by the affirmative vote of 60 Senators. That rule, however, is neither inscribed in the Constitution nor in any statute and can be amended or repealed by a vote of a simple majority of the Senators voting. As such, any party controlling the Senate can alter or eliminate it. Still, it has enjoyed a relatively long existence dating back to the early 19th century and is generally credited with facilitating debate during which the views of minority members can be heard. During the administration of Lyndon Johnson, the filibuster rule took on great prominence as southern senators sought to block the adoption of civil rights legislation by holding the Senate floor for hours on end talking about anything and everything in the hope that the remaining members of the Senate, in frustration, would simply agree to table the bill and move on to other matters.
To combat this form of abuse, the rule was amended in the 1970s to simply require an objecting senator to voice his/her opposition and the matter would be immediately tabled unless 60% of those voting agreed to allow it to be considered for adoption. During the Carter administration the cloture rule was further amended to accommodate the budget reconciliation process (See, “Biden’s Legislative Strategies”) which allows legislation relating to the federal budget, deficit and/or expenditures to be passed by a simple majority vote. Those changes worked well until the Obama administration when Senate Republicans invoked the filibuster rule over 160 times to block a wide variety of legislation as well as administrative and judicial appointments. In frustration, Senate Democrats chose to further amend the rule so to allow a cloture motion to be adopted by a simple majority for the confirmation of Circuit and District Court and executive branch nominees. Following the 2016 election, the Republicans not only used the amended rule to facilitate their appointment of 230 federal court judges, but also further amended it to permit Supreme Court nominees to be confirmed by a simple majority vote which facilitated the appointments of Justices Gorsuch, Kavanaugh and Barrett.
There are two principal arguments against weakening the cloture rule: (1) that it would allow the party controlling the senate to simply pass legislation without providing members of the minority party an opportunity to express their views and offer suggestions for improving the legislation; and (2) that it would invite retaliation in kind and possibly even further erosion of the protection offered by the rule like what happened following President Trump’s election.
The first argument suffers from the realization that ignoring the voices of minority members of the Senate may not be nearly as bad as preventing the Congress from being a functional body. That has proven to be a particularly compelling consideration in light of the Republican Party’s current practice of trying to simply prevent Democrats from passing any legislation, regardless of its popular support. In fact, the more beneficial the matter, the greater the likelihood that Republicans will oppose it so as to deny the Democrats a significant political victory. That was certainly the case with the recently enacted COVID rescue legislation that enjoyed the support of over three-quarters of Americans, including 59% of Republicans. That legislation was enacted over the unanimous opposition of Republican senators only by employing the budget reconciliation process. So long as the Republican Party is committed to legislative obstructionism, there is no compelling reason to provide them with any form of veto power.
It’s not as if the elimination of the filibuster rule is likely to prevent a minority party from expressing its opposition and making suggestions for improving a legislative proposal. Every piece of legislation considered by the Senate must first be approved by one or more Senate Committees, each of which includes members of the minority party. The Senate Committees afford their members ample opportunity to express their views and to make suggestions for improving the contents of the subject legislation. In addition, the nation is blessed with literally thousands of news organizations and social media networks that offer an opportunity for legislators to explain their positions to the public and to invite members of the public, in turn, to relay their opposition to their own elected representatives.
As was recently pointed out in a New York Times editorial, the very structure of our federal government already provides numerous other protections against tyranny of the majority. Small states are given equal representation in the Senate with large states and the Electoral College makes it possible for a minority party to nevertheless prevail in a national election. In addition, legislation must not only be approved in the Senate, but also approved in the House of Representatives and signed by the President. That legislation must also be consonant with the Constitution as determined by the Supreme Court. On top of all of these safeguards, legislation that does not meet with the approval of the public could result in a backlash at the polls which could result in a change of control in either or both houses of Congress as well as the White House. Thus, a rule essentially assuring unfettered debate in the Senate is both unnecessary and inhibiting.
The second argument for not amending the filibuster rule is equally unpersuasive. This is not to say that if Democrats amend or dispense with the filibuster rule, the Republicans will not respond in kind. Not only have they threatened to so and much more, but as explained above, they did exactly that when they regained control of the Senate after the Democrats relaxed the filibuster rule in 2014. Quite frankly, the Republicans don’t seem to require a reason to act in an undemocratic fashion as evidenced by their refusal to even consider President Obama’s Supreme Court nomination of Merrick Garland, a man of unquestioned integrity and impeccable credentials.
Even though retaliation in kind must be considered a real threat, there remains a strong chance that it could be a long time before Republicans would even be in a position to retaliate. That’s because the popular base of the Democratic Party has been expanding and the popular base of the Republican Party has been diminished by the anti-democratic actions taken by President Trump and the many Republican legislators who continued to support him following the January 6th Capitol insurrection. As a result, without gerrymandered electoral districts which would be restricted by the new House bills, Republicans would likely lose at least a dozen seats in the House. In addition, without voter suppression efforts, also restricted by the House bills, they would likely lose at least a handful of Senate seats. While the Electoral College would still be available to help Republicans win national elections, that task would be made more difficult in the absence of the voter suppression measures that would be outlawed by the House bills. In addition, the electoral chances of all Republican office-seekers would be even further diminished by the House bills’ imposition of disclosure requirements relating to “dark money” which Republicans use in abundance to support their campaign efforts.
Unfortunately for Democrats, there is yet another factor that must be considered. Should the Democrats abolish or suspend the filibuster rule in order to adopt the two pending voting rights bills, the Republicans will undoubtedly challenge the constitutionality of those bills and those lawsuits would undoubtedly be finally resolved in the U.S. Supreme Court where six of the nine justices were nominated by Republican presidents. This could take many months, and possibly years, to sort out and there is a strong possibility that enforcement of these statutes could be stayed while they are being challenged. In addition, there is a serious chance that some of their features could be held unconstitutional.
The fundamental issue that the courts would be asked to decide will relate to whether the federal government can dictate the rules for conducting elections, a function that heretofore has largely been left to the states. The short answer appears to be “Yes” insofar as it relates to the election of members of the House of Representatives. The answer is less clear for Senate members. Article I of the Constitution controls the election and functions of the Congress, and Section 4 thereof expressly provides:
“The Times, Places, and manner of Holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”
For the most part, Congress has allowed the states to establish their own voting procedures, except that the Voting Rights Act of 1965 imposes limitations on their ability to do so in a manner that discriminates against minorities. That Act, which has been amended six times and the subject of almost two dozen Supreme Court decisions, firmly establishes the principle that the Congress can impose requirements on voting procedures that affect the election of members of Congress. The scope of the Voting Right Act appears to encompass all aspects of elections of members of the House of Representatives, including the times and places that elections are held and the boundaries of Congressional districts.
What previously made the Voting Rights Act effective was Section 5 which required pre-clearance by the Department of Justice of any voting law changes enacted by states that had a history of voting discrimination. That provision was declared unconstitutional in the Supreme Court’s 2013 decision in Shelby County v. Holder on the grounds that the passage of time had made it inappropriate to treat those states differently. This was a highly questionable decision as, lacking the power to do their own fact-finding, the courts have always felt compelled to accept the findings of legislatures as to the need for legislation. Within a few months that decision, each of the states regulated by Section 5 had enacted new voting restrictions adversely affecting their minority populations and it now takes literally years to have a discriminatory voting restriction declared in violation of the Act. While it appears that states retain the exclusive right to limit the polling stations for Senatorial elections, that has never been tested in the courts; but such a challenge is not beyond the realm of possibility, especially in the case of run-off elections like the ones that recently took place in the State of Georgia.
The rules relating to presidential and vice-presidential elections are entirely different and the Constitution does not even require that state representatives to the Electoral College be determined by popular vote. Those elections are governed by Article II, Section 1 of the Constitution which provides in part as follows:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the number of Senators and Representatives to which the State may be entitled in the Congress . . .”
Thus, it’s not inconceivable that Republican-controlled states might evade the safeguards against voter suppression that Democrats are seeking to impose by simply opting to have their legislatures choose their Electoral College representatives. While this might evoke public condemnation, it would not be unconstitutional.
One issue embodied in the two bills now pending in the Senate has previously been addressed by the Supreme Court. That issue involves whether the federal government can limit campaign contributions. In its 2010 decision in Citizens United v. Federal Election Commission, the Supreme Court ruled that campaign contributions are a form of speech protected by the First Amendment and that corporations are encompassed by that protection. Thus, the most the Congress can do with respect to the issue of “dark money” is to require disclosure of all campaign contributions in a timely fashion. It’s not likely to be able to prevent large campaign contributions from being made and the consequences for having failed to make timely disclosures is neither clear nor effective in preventing its use.
Because of the serious threat to our nation’s democratic traditions posed by the wave of voting restrictions currently being proposed by Republicans and the lack of any compelling reason for not amending the filibuster rule, some progressive Democrats have suggested that Joe Manchin and Krysten Simena (who currently oppose amending the rule) be forced out of office. This is a self-defeating suggestion born out of frustration as both of these senators represent states that are generally represented in the Senate by Republicans. Thus, the chances are high that if they are forced out of office they would be replaced by Republicans and not by more compliant Democrats.
At this point, it isn’t clear whether Senate Democrats’ newfound party discipline will enable them to band together to amend or repeal the filibuster rule. Nor is it clear that they would actually accomplish anything by doing so. Indeed, they could create the worst of all possible worlds by eliminating the filibuster rule and not be able to take advantage of having done so. Still, if they don’t press forward with amending the filibuster rule and facilitating the enactment of the two House voting rights bills, they will have missed what may prove to be their last chance to prevent the Republicans from transforming our democracy into a plutocracy.