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Copyright 2021 Dan Cofran

Is it time to repeal or reform the Senate filibuster? The Senate’s filibuster rule has been so seriously abused over the last 100 years that the Senate has become a minority-rule institution. The 60% supermajority requirement just to end debate and vote on a simple majority bill or nomination has been weaponized to gut majority rule in the United States.

And to make matters worse . . . . The 60% filibuster rule is compounded by another Senate rule passed in 1972 by the 92nd Congress that requires a 2/3rds majority to amend or reform any Senate rule, not just the filibuster rule. Therefore, a 2/3rds supermajority is required to repeal or amend the 60% filibuster rule. Today’s Senators, the 117th Congress, are “entrenched” to follow a rule fifty years ago (the 92nd Congress) that they never voted on. A legislative body is free to pass its own rules, but only for its own term, not future terms.

People understandably are calling for repeal or reform. What are the options? Essentially, there are five paths:

• Repeal the filibuster rule outright

• Amend the filibuster rule to reform it

• Use the “nuclear option”

• Challenge in courts as an entrenchment

• Use a statutory filibuster exemption

Repealing the Filibuster Rule

The Senate for the first time passed a rules amendment requiring a 2/3rds supermajority majority requirement of those attending and voting for repealing or amending any Senate rule, including the filibuster rule. This was done at the same time it lowered the filibuster supermajority requirement from 2/3rds to 3/5ths for ending debate.  “What the Senate giveth, the Senate taketh away.” 

In today’s 50/50 Senate, Republicans and a few Democrats support retaining the filibuster, at least in some form.  But there is no way 67 Senators would agree to repeal the filibuster altogether.  That’s simply a bridge too far.

The last time a party in the Senate had 67 votes was the Democrats in the 1960s. This was during the Lyndon Johnson presidency when the civil rights laws were passed. The civil rights laws so alienated Democratic Senators from the south that they started voting with Republican Senators on many matters, beginning the polarization that has dogged the Senate to this day. With the Senate so seriously polarized, a 2/3rds majority to repeal the filibuster simply is not achievable.

Reforming the Filibuster Rule

There are indications that some Senators on both sides of the aisle would support a less onerous filibuster rule.  That would require 67 Senators to amend the rule, assuming all 100 were present and voting.  That’s still a tough row to hoe. Nonetheless, there are several ideas worth mentioning:

Talking Filibuster.  The filibuster could be limited to the talking filibuster as was done until the 1970s.  The 3/5ths supermajority requirement would remain, but filibusters would have to be out in the open for all the world to see . . . Senators speaking in person, non-stop at the podium.  That likely would be too bitter a pill for most Senators. Appearances of obstruction simply look bad. That’s why they came up with the silent filibuster. It would, however, likely would reduce the number of filibusters that have become so common today.

Reduce the Majority Requirement.  The threshold for ending debate could be lowered from 3/5ths (60 votes) to a lower number, say 55 votes.  The Senate has been evenly divided for so long that 55 votes be little different than 60.  The last time either party could muster 55 votes in the Senate was during the Obama presidency, 2009 – 2011, when there were 57 Democratic Senators.

Burden.  The burden now is on bill supporters to raise 60 votes to end debate and vote.  Some have suggested putting the burden on bill opponents to continue debate, for example, mustering over 40 votes in order to continue debate after a capped debate period.  However, the current Senate is so rigidly split along party lines that burden shifting without also significantly changing the majority requirement is highly unlikely.

Limit Debate.  The number of hours for a filibuster debate could be shortened, for example, ten hours per side.  The Senate rule already limits cloture debates to 30 hours per side.  However, without reducing the required majority threshold, this will do little other than perhaps consume less time for the process.

Declining Majority Vote. Adam Jentleson, former Chief of Staff to former Senate Majority Leader Harry Reid, in his book “Kill Switch – The Rise of the Modern Senate and the Crippling of American Democracy” suggests a declining majority model.  The Senate would have a series of repeated debate periods and cloture votes, starting with the current 3/5ths (60 votes) super-majority requirement to end debate and vote. If not met, another time-limited debate and vote would follow, but with a lower majority requirement, e.g., 57 votes, repeated if necessary with successive lower majority requirements until down to a simple majority to end debate and vote.

This approach would allow debate, but avoid obstruction to prevent a vote. For that reason, this approach would not be acceptable to those committed to using the filibuster as a weapon. 

The “Nuclear Option”

The nuclear option works as long as bill proponents can muster and hold a simple majority.  This is a parliamentary tactic used to reduce the cloture rule’s 3/5s super majority requirement to a simple majority. 

Senate Majority Leader Harry Reid (D-NV) used the nuclear option in 2013 to get simple majority votes to end debate and vote on federal judge nominations, other than the Supreme Court nominations. Senate Republicans that year filibustered all Obama appellate court nominees and slow-walked all of district court nominees.  

Both parties have since used the nuclear option.  Republicans used it for all three of the Gorsuch, Kavanaugh and Coney-Barrett Supreme Court Justice nominations.  At this point, the nuclear option has been used only for appointments, not legislation or Senate rules.

How the Nuclear Option Works. 

You might want to sit down for this. 

Background. Under Senate rules, the Senate’s presiding officer rules on points of order.  The presiding officer is the Vice President or the Senate’s president pro tem who presides in the Vice President’s absence.  These rulings, however, are subject to an appeal and reversal by a simple majority Senate vote.

• Step 1.  A Senator moves to end debate on a filibustered bill.  The Senators vote and let’s say 55 vote to end debate. 

• Step 2. The presiding officer will properly that rule that the motion to end debate fails for not getting the required 3/5s majority (60 votes). 

• Step 3.  The Senator making the motion to end the debate will immediately appeal the presiding officer’s ruling to the full Senate floor with a “point of order.”  He or she may or may not provide a reason, e.g., the 3/5ths super majority requirement is unconstitutional as violating the Constitution’s bedrock principle for majority rule or that it is an unlawful “entrenchment” rule from a former Senate binding a future Senate, discussed below. 

• Step 4.  The matter is put to an immediate vote of the Senate.  Points of order are non-debatable and get a prompt Senate vote.

• Step 5.  If the appeal gets a simple majority, the presiding officer is overruled and the matter the proceeds to a final vote on the merits based on a simple majority.

The $64,000 Question. If the nuclear option can be used to allow simple majority votes on legislation and presidential appointments, why can’t it be used to amend or repeal the Senate filibuster rule itself or, for that matter, the Senate rule requiring a 2/3rds vote to amend any Senate rule?

The Filibuster as an Unlawful Entrenchment

Under the Constitution, each house is empowered to make its own rules.  As a result, federal courts stay out of rule disputes as a “political question,” meaning it is up to the Congress as a legislative, not judicial, matter under the Constitution’s fundamental separation of powers principle.  However, federal courts may not stay out if a rule is unconstitutional or otherwise unlawful, for example, a rule refusing to seat a newly elected Senator not swearing to the Christian faith.  

In addition, under the long standing entrenchment doctrine, a legislative body cannot bind a future legislative body. A legislative body cannot prevent a future legislative body from amending or repealing laws passed during the former body’s session. Supreme Court decisions confirm this. A legislative body is always free to repeal or amend earlier laws.

According to at least one constitutional law scholar, the entrenchment doctrine applies equally to legislative bodies’ procedural rules. Each House and Senate elected every two years is a new legislative body entitled to make its own rules and not labor under entrenched rules of a former, out-of-office House or Senate.  A Senate is certainly entitled to require super majorities on bills and rules, but only during its term. It cannot not shackle the next elected Senate.

The Senate tries to get around this by declaring in its rules that it is a “continuing” body, not a new body every two years when up to a third of its members can change. This was done at the same time as adding the 2/3rds supermajority requirement to amend any rule. But declaring itself to being a continuing body, by definition, is another entrenchment not binding on later Senates.

Legal scholars claim entrenched rules violate the right to vote. Newly elected Senators should not be bound by a rule they did not vote for. Their constituents should not be bound by Senators from the past for whom they did not vote. This violates the voting rights of current citizens electing new Senators every two years.  They can’t “throw the bums out.” The bums are no longer there.

As a result, we end up with three unlawful entrenchments from the 1972 Senate – the requirement for a 3/5ths supermajority to end a filibuster debate, the 2/3rds supermajority to amend any Senate rule and the declaration that it is a continuing body.

This is not likely to make much headway with the federal courts, however. The Supreme Court decisions recognizing entrenchment are about statutes, not rules, and the few decisions primarily are from the 19th Century. This can make them them less persuasive in courts, especially with current Supreme Court. Its majority has shown little deference to its own precedents and settled appellate jurisprudence.

Statutory Exemptions

Finally, several categories of legislation are exempt from filibusters by statute and should not be overlooked.  Statutes, passed by both houses of Congress and signed by President, prevail over internal Senate rules. 

The statutory exemptions are based on a need for prompt action.  These statutes impose time limits for action and specify simple majorities for approval, cutting off a filibuster.  There are five exempt categories:

• Budget reconciliation
• Use of military force
• National emergencies
• International trade agreements
• Agency regulations

Budget Reconciliation.  By a 1974 joint resolution with the House, Senate votes approving budget reconciliation measures must be done with a simple majority.  This, of course, is the route the Biden administration is using for its “Build Back Better” infrastructure legislation.

Budget reconciliation measures are part of the annual budgeting process.  They are used to make mid-year adjustments to the budget for items remaining unfinished when the budget was approved.  They must be germane to the budget (called the “Byrd Rule”) and be identified in advance and included, like a place holder, in the budget when it is approved.

Authorizations for Use of Military Force (“AUMFs”).  Only Congress has the power to declare war under the Constitution, not the President.  While the President is the Commander in Chief, that’s only under a Congressional declaration of war or other authority.

Sometimes the President must act quickly. A 1973 joint resolution of the House and Senate authorizes the President to take military action under an AUMF to address “actual” or “imminent” hostilities. It’s like a temporary or pre-declaration. The President is required to confer with Congressional leadership and submit a formal notice to the Congress. Any emergency presidential authority automatically ends unless Congress by an AUMF authorizes, limits or terminates the use of military force within 60 days of the president’s notice of taking military action. The 60-day limit short circuits any filibuster. To learn more, read “Can a President Use Military Force without Congressional Approval” here.

National Emergencies.  Legislation to terminate national emergencies declared by the President must be heard in committees and voted on in each of the House and Senate within specified 15 and 3-day time periods under the 1976 National Emergencies Act.  No time for a filibuster. As of July 2020, there were 28 declared emergencies under this act, some renewed by Congress and going back decades.

Fast Track International Trade. Statutes limit debates on “fast track” international trade negotiations by the President with foreign countries. While Congressional approval of trade agreements is required, debates are limited to 20 hours in each body of Congress and only need simple majorities for approval.  The Trade Act of 1974 was passed in that year and renewed a number of times, including a ten-year renewal in 2002. President Obama sought renewal in 2012.

Agency Regulation Overrides.  The Senate and the House can overturne Executive branch administrative agency regulations under the 1996 Congressional Review Act, but they have only 60 days to do so.  This cuts off the opportunity to filibuster.  

Conclusion

The filibuster is an accident of history. It has been weaponized for partisan purposes. To the extent it has any value, it should be reformed to serve that value, not others. Debate is an American and Constitutional value. Obstruction is not. Minority views should be protected, but they should not predominate. Putting the burden on a sizeable minority to continue debate, not prevent it, warrants serious consideration.

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© 2021, Dan Cofran. All rights reserved.