Senate
procedure is complex enough that talking about it often trips up even senators
who have been around for several years.
Reporters
writing about the so-called “filibuster” often look to past reporting to get
their bearings, perpetuating a conventional wisdom that is false or very
misleading.
It
is common to refer to the cloture motion as the “Senate filibuster.” I’m guilty
of doing that as a sort of shorthand, but I ought not.
According
to the nonpartisan Congressional Research Service, “filibustering includes any
use of dilatory or obstructive tactics to block a measure by preventing it from
coming to a vote.”
The
cloture motion is not the same thing as a filibuster, as CRS will also confirm.
The
cloture motion requires 60 votes to bring consideration of legislation to
finality.
That
means not just debate, but, crucially, the amendment process.
That’s
worth repeating. The effect of invoking cloture is to say that the Senate has
considered the bill enough, meaning a sufficient number of amendments have been
considered that the Senate has had a chance to work its collective will.
The
Senate was designed by the constitutional framers to be the more deliberative
body.
In
the House, a narrow majority can pass hastily drafted, poorly conceived legislation.
As
political parties have become more ideologically polarized, power to shape
legislation has accrued to House leadership.
Individual
members of the House of Representatives have essentially no opportunity to get
a vote on bills or amendments unless blessed by the Speaker.
The
House Rules Committee, filled with partisans loyal to the Speaker, will draft a
special rule for considering a bill detailing the amendments, if any, allowed
to be offered.
Members
of the majority party in the House are expected to vote for their party’s rule
no matter what.
The
Senate is supposed to be different.
It’s
the “cooling saucer” making sure each provision in legislation is thought
through.
We
also make sure that bills work for most states, not just the more populous
states on the east and west coast that dominate the House.
Each
and every senator represents a whole state and each senator has an equal right
to participate in the legislative process on behalf of their state.
Senators
who would abdicate that right are doing a disservice to the state and the
people they represent.
In
the 2008 election, Democrats gained a 60 vote supermajority in the Senate with
a Democrat House and President Obama.
As
such, the Senate acted like the House.
The
usual deliberative process with bipartisan negotiations and careful refining
and tweaking by committees went out the window.
Major
legislation was drafted in the Senate Democrat leader’s office, often bypassing
Senate committees. Democrats would then dutifully invoke cloture, often with no
Senate floor amendment process at all.
I
was astounded at the time that Democrat senators would routinely vote to cut
off the amendment process before it had begun.
Surely
they had amendments important to their states that they would have liked to
offer.
But,
voting for cloture was expected of Democrats–just like the rule in the House–even
if it meant giving up their right to offer amendments, thus abdicating their
responsibility to represent their home states.
That
situation became the norm, even when the Democrats lost their short-lived 60
vote supermajority.
Most
senators now serving, only know the Senate since this break with Senate
tradition.
Despite
some improvement in recent years, the culture of the Senate has not recovered.
When
people say the Senate is broken, the problem is not the one Senate rule keeping
it from becoming just like the House.
The
problem is people who expect the Senate to act just like the House when the
Senate is actually intended to be a check on the House.
Since
the most significant effect of blowing up the 60 vote cloture rule would be to
deny the right of all senators to offer amendments on the Senate floor, why do
people talk about some return to the mythical talking filibuster?
That
comes out of confusion over the word “filibuster” I mentioned at the start.
The
Senate rules state that, in most cases during debate on a bill, a senator may
speak for as long as that senator holds the floor.
That’s
the rule Jimmy Stewart’s character took advantage of to delay consideration of
a corrupt bill in the classic movie, Mr.
Smith Goes to Washington.
That
meets the definition of a filibuster, but it has nothing to do with the cloture
rule.
Those
who would argue that senators ought to have to speak nonstop on the Senate
floor until they collapse just to preserve their right to offer an amendment on
behalf of their state are either confused or being dishonest.
During
the Trump administration, reporters routinely sprinkled the word “falsely” into
descriptions of things President Trump said as a sort of running fact check.
Reporters
ought to revive the practice of using the word “falsely” when President Biden
and other Democrats make demonstrably false statements. This issue would be a
good place to start.
Any
reference to some non-existent, totally mythical age of the “talking
filibuster” ought to have a disclaimer that no such requirement ever existed
for the 60 vote cloture rule.
As
I mentioned, conventional wisdom about the filibuster has been distorted by
confusion, and perhaps intentional shell games.
For
senators or reporters wishing to truly understand this issue, I urge you to
consult the nonpartisan Congressional Research Service as your main source.
