We’ve heard lot of discussion recently about efforts to end the filibuster in the United States Senate. The Indiana Chamber opposes such action because it can lead to those with a very slim majority not trying to work with the other party – whichever it may be – and ramming through more extreme policies that didn’t benefit from trying to achieve bipartisan support and compromise.
The filibuster is a parliamentary procedure exclusive to the U.S. Senate that, according to the U.S. Senate web site, is an action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment or other debatable question. Typically, this is accomplished by debating it at length, by offering numerous procedural motions or by any other delaying or obstructive actions. It isn’t something new. On September 22, 1789, when Pennsylvania Sen. William Maclay wrote in his diary that the “design of the Virginians … was to talk away the time, so that we could not get the bill passed.” As the number of filibusters grew in the 19th century, the Senate had no formal process to allow a majority to end debate and force a vote on legislation or nominations.
That led to the creation of cloture, which according to the U.S. Senate’s glossary is “the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours.” This came about in 1917, with frustration mounting and at the urging of President Woodrow Wilson, when senators adopted Senate Rule XXII that allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. This rule was first put to the test in 1919 when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the cloture rule, filibusters remained an effective means to block legislation since a two-thirds vote was difficult to obtain. Over the next four decades, the Senate managed to invoke cloture only five times. Filibusters proved to be particularly useful to southern senators who sought to block civil rights legislation, including anti-lynching bills. Not until 1964 did the Senate successfully overcome a filibuster to pass a major civil rights bill.
The discussion to change the filibuster and clotures is nothing new. It has been around for decades as frustration with the process has continued. In 1975, the Senate reduced the number of votes required for cloture from two-thirds of senators voting (67 of 100) to three-fifths of all senators duly chosen and sworn (60 of 100). The use of the filibuster remains a part of Senate practice today, although only on legislation. The Senate adopted new precedents in the 2010s (2013 executive branch nominations and federal judicial appointments and 2017 Supreme Court nominations) to allow a simple majority to end debate on nominations. The U.S. Constitution (Article I, Sec. 5, Cl. 2) gives a simple majority the power to set procedural rules: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” So, until 50 senators agree to end or change the use of the filibuster/cloture, the debate is likely to continue. With the current make-up of the U.S. Senate (48 Democrats, 50 Republicans and two Independents who caucus with the Democrats), change could happen, but I believe that it is unlikely.
For more information on the use of the filibuster/cloture, I recommend this Brookings article and Senate brief.
Resource: Greg Ellis at (317) 264-6881 or email: gellis@indianachamber.com
