President Biden’s agenda has stalled on Capitol Hill, where Democrats have been unable to overcome Republican opposition in the Senate to pass bills such as the Build Back Better Act and law reform of voting. Democrats are increasingly concerned that failure to pass more of their legislative agenda before November’s midterm elections could cost them control of Congress.
Many Democrats point to the filibuster of the Senate — an old pet peeve of American politics — as the reason why they can’t keep their campaign promises. They claim that Republicans want to deny Democratic candidates legislative achievements on which to run in the next election.
But scrapping the filibuster won’t make it easier for Democrats to pass their legislative priorities. Indeed, Republicans who filibuster are not currently preventing Democrats from legislating. Unfortunately, calls to end the filibuster miss this essential fact and, by extension, overlook how Democrats can overcome Republican opposition to their legislative priorities simply by using existing Senate rules.
Behind the Democratic effort to abolish the filibuster is the assumption that majorities in the Senate cannot pass legislation over the objections of a minority. However, Senate rules do not allow a majority to end debate on a bill as long as a senator wants to speak on it. The Senate first allowed unlimited debate on legislation in 1806. This decision allowed a minority of senators to engage in legislative filibuster supported by the majority, but only as long as those senators were willing to stand and to speak on the floor of the Senate.
In 1917, the Senate passed a rule allowing a supermajority to end a filibuster by invoking closure. The rule of closure has changed the way the Senate works over time. Instead of waiting for the filibuster to end, as in the past, Senate majorities are now trying to invoke closure to reach a final vote on a bill. As a result, the majority gives the minority the ability to block a final vote they otherwise wouldn’t have because the Senate’s closure rule requires more votes to end debate (usually 60) than to pass legislation. (usually 51).
But the filibuster didn’t always work that way. In the past, this practice facilitated negotiation and compromise between senators. This is why laws approved by the Senate often included provisions favorable to the minority in addition to those supported by the majority. But the prevailing view today is that partisanship and polarization prevent senators from compromising. The filibuster is a veto, according to this view, that minorities in the Senate can use to block legislation favored by the majority.
Yet the filibuster can only function as a veto with the consent of the majority party. This is because the filibuster is not a veto. Instead, it simply grants senators the opportunity to speak in the Senate for as long as they can. Using the filibuster to filibuster on a prolonged basis requires filibusters to exert considerable effort to succeed. And they can only succeed by persuading a majority of senators to join them in opposing the underlying bill, because a senator cannot stand and speak forever. At some point, he or she must sit down. And when that happens, the Senate votes. And the success rate of past buccaneers suggests they only succeed when ascended at the end of a legislative session.
Democrats currently use the closure process to shut down debate instead of forcing senators to filibuster and then wait for them because it’s easier to control and more predictable. It also injects a degree of freewheeling decision-making into a process that Senate Majority Leader Chuck Schumer, D.N.Y., would prefer to control. Finally, forcing unsuccessful closing votes gives Democrats the chance to blame Republicans for failing to deliver on their campaign promises during the election season.
Democrats don’t have to use closure to defeat Republican opposition. They can instead force Republicans to stand up and speak while using existing Senate rules to make the filibuster as painful as possible for them. Senate history suggests that if Democrats want to end the filibuster, getting Republicans who don’t want to vote to stand up and talk is just as effective in defeating their opposition as invoking closure. And it doesn’t require 60 votes to run.
The filibuster is not the problem. Democrats are. And if they want to adopt President Biden’s agenda, they should use Senate rules instead of blowing them up to abolish the practice.
James Wallner is a senior researcher at the R Street Institute. He wrote this for InsideSources.com.