PERSPECTIVE: Senate Filibuster is a Perverted Use of an Outdated Rule

PERSPECTIVE: Senate Filibuster is a Perverted Use of an Outdated Rule

Created: 02 June, 2021
Last update: 26 July, 2022
Arturo Castañares

The word filibuster is being thrown around a lot these days but is being misused as much as the antiquated rule itself. 

Last week, Republicans in the Senate voted mostly along party lines to block a bill to create a 10-member bipartisan independent commission to investigate the January 6th siege on the US Capitol Building.

The House had passed the bill the previous week when 35 House Republicans voted with Democrats, but only six Republican Senators crossed over the aisle to support the proposal.

Critics called it a filibuster, but that is actually the opposite of what really happened.

The bill in this case, like all legislation, only needed a simple majority to have passed. The Senate is evenly divided with 50 Republicans members and Democrats controlling 50 seats because two Independent Senators -Angus King of Maine and Bernie Sanders of Vermont- vote with the 48 Democratic members to form a block. Vice-President Kamala Harris provides the tie-breaker vote as the President of the Senate, giving Democrats majority control.

But, the proposal died before it was ever even heard on the Senate floor because it needed at least 60 votes to move forward to a vote under a little known procedure called cloture, literally closure in French, which is meant to end a filibuster, but today is used to stall legislation before an up-or-down vote can be taken.

Cloture is supposed to be used to end debate and was historically used by the majority to force an end to a filibuster, a stall-tactic used by a minority to delay a vote for hours, days, even weeks by retaining control of the floor through continuous speeches. Cloture was created to stop the abusive filibuster delay of a small faction and finally force a vote, but now it’s used by the minority to stop the majority from taking a vote: the exact opposite of what the Founding Fathers and early Senators intended.

The word filibuster, not unique to the US Senate, is derived from the Spanish word filibusteros used to describe 17th Century pirates who plunders islands in the Caribbean. 

Attributing a word for pirates to what’s currently going on in the US Senate seems like an appropriate use of the colorful term to describe a political hijacking of sorts.

During the first Senate session in 1789, Virginia Senators were described as wanting to “talk away the time, so that we could not get the bill passed” and the practice grew more common in the 19th Century as a way to delay votes, sometimes indefinitely.

In 1917, a rule was devised to put an end to the long-winded filibusters with a two-thirds vote of the Chamber. Senate Rule 22 allowed the Senate to invoke cloture to end debate and force a vote, but the high vote requirement still resulted in occasional filibusters continuing to stall controversial votes.

In the mid-20th Century, the filibuster was used by Southern Democrats to slow the passage of civil rights legislation, including when South Carolina Senator Strom Thurmond (pictured above) set the record for the longest single-person filibuster at more than 24 hours in his attempt to delay the passage of the Civil Rights Act of 1957, and again when Thurmond and five other Southern Senators stalled a vote on the Civil Rights Act of 1964 for more than 60 days until enough votes came together to force cloture. Thurmond later became a Republican after the political policies of the Parties flip-flopped.

In 1975, the Senate amended the cloture vote down to a three-fifths threshold which continues today, meaning that 60 votes of the full 100 Senators is needed to force a vote.

But, in recent years, the cloture threshold has been used in reverse by the minority party when they invoke Rule 22 first to show that not enough votes exist to allow a vote. By calling for a failing cloture vote, a final vote on passage of the bill is never taken, effectively killing the measure.

That’s what happened last week when Republican Minority Leader Mitch McConnell whipped up enough votes against the January 6th commission bill to effectively kill it, even though six Republicans Senators voted to support it.

A bipartisan majority of the US Senate could not force a final vote on a bill to form a bipartisan commission to investigate an attack on the US Capitol Building because a 44% minority of the Senate opposed it.

How, again, is that democracy at work?

The Senate claims to be “the world’s greatest deliberative body” yet it abuses its own rule to stifle democracy, allowing a minority to stall the majority, exactly the opposite of what a real democracy should be.

In 2013, the cloture rule was changed to exclude votes on Senate confirmation of presidential nominations after several of then-President Barack Obama’s judicial nomination were stalled. Then-Democratic Majority Leader Harry Reid invokes the so-called “nuclear option” to lower the vote threshold because Republicans refused to fulfill their Constitutional obligation to provide “Advice and Consent” of presidential nominations.

The 2013 rule change to exclude votes from cloture did not apply to US Supreme Court nominations and legislation.

At the time, then-Republican Minority Leader Mitch McConnell called it a “power grab” by Democrats and said “It’s a sad day in the history of the Senate.”

But then Republicans took control of the Senate after the 2014 elections and McConnell became the Senate Majority Leader. Then he committed his own power grab.

In 2017, right after Donald Trump became President, McConnell and Senate Republicans used the nuclear option to change the cloture vote threshold to also exclude Supreme Court nominations in order to push through Trump’s first nomination to the high court, Neil Gorsuch, by a 54-45 vote with only three Democratic Senators joining all of the Republicans.

Now the only votes that can be filibustered are for legislation, and even that may be up for grabs.

Democrat are now starting to argue against the abuse of cloture as a weapon of the minority to stop a bipartisan majority from voting in important legislation on the floor.

The obstructive minority isn’t even bothering to stage real filibusters speeches anymore, but, instead, block votes before they ever see the light of day.

Alex Padilla, California’s newest Senator, tweeted this week that “The time to change the rules around the filibuster is NOW” in response to Texas Congressman Joaquin Castro who criticized Republicans for supporting laws that restrict voting rights in saying that “Republicans are willing to change any law they need to to take away people’s right to vote. Democrats, at least, should be willing to change one custom…the filibuster, in order to protect people’s voting rights.”

The premise of democracy is majority rule by vote, not a minority abusing the process to stall progress without a vote. That is not to say that the tyranny of the majority should inflict suffering on the minority, but an obstructive minority that doesn’t even go through the trouble of staging a filibuster is abusing the system.

Washington DC has become too polarized and stuck in partisan battles. In 2009, Mitch McConnell openly declared his number one goal was to deny Barack Obama a second term (which he failed in doing) and now says he will stall Joe Biden’s agenda (which he is trying to accomplish).

When the Republican Senate Leader openly expresses that obstruction is his goal, he is forcing Democrats to go-it-alone without bipartisan support, then uses the cloture rule to stop them.

Our democracy is stuck. Our traditional system of bipartisanship is broken. Something has to change.

If Republicans don’t even bother taking the time to actually filibuster by taking the floor and actively working to delay a vote, then Democrats may have to exercise the final nuclear option: end the 60-vote cloture rule on legislation and let the chips fall where they may.

Of course, that means that Republicans could use the process to push through their own legislation by a simple majority vote if and when they ever retake control of the Senate, but then again, that’s how democracy is supposed to work.

The battle for control should be at the ballot during an election, not in the Senate by obstructing votes.

We have to respect our democratic system of government enough to like it even when we don’t get our way.

Election have consequences.