Many Americans may be familiar with Senator Chris Murphy’s 15-hour filibustered speech to call for a vote on gun control measures, which were intended to stop terrorists from buying guns. However, few may understand why it took 15 hours of standing and talking to make the Senate agree on holding another round of voting. This is because of a dysfunctional Senate structure called filibusters.
We often associated filibuster with an image of the “talking filibuster”, one depicted in the 1939 film “Mr. Smith Goes to Washington.”, where Mr.Smith did not stop his anti-legislative corruption speech until he finally fainted due to exhausting strength. Talking filibuster is yet what happened now. In the current Senate, one could simply cast his vote of yes or no and then just leave without staying for the whole time.
According to a rule formalized in a 73-21 decision in 1975 called “cloture”, opening or ending a debate would need the votes of at least three-fifths of legislators. For a Senate of 100 senators, that means 60 votes at minimum. In real life, however, this number is rarely realized. Cloture and the abolish of talking filibusters increase the difficulty of passing a decision in the Senate and makes the burden fall on the majority.
However, the filibuster is not a structure envisioned by the Framers. Comprised of two legislators appointed from each state, Senate is designed to be the most deliberative structure in the nation. The Founders expected the Senate to be an institution that protects the minority power and represents the highest level of reasonableness. For this reason, a super-majority rule is explicitly rejected by the Framers. In an open letter over 100 political scientists and historians wrote to the Senate, filibuster is a symbol of the country’s racist history. It was born to shed light on “an exploitation of the Senate’s generous rules of debate, propelled in part by proslavery senators seeking to protect slaveholder interests”. These scholars argued that the existence of filibusters weakened the core of democracy to the degree that some reforms are consequentially compulsory.
Norman Ornstein is a national expert on filibuster reform who believes that responsibility of decisions should fall on the minority. In an article he presented to the Filibuster Reform Forum, he said that to redirect the attention to the minority side, the trick would be using 41 votes to start and excute a filibuster.
Specifically, to effectively block an action, he wrote “they would have to have 41 senators either on the floor or nearby night and day, weekends, Mondays and Fridays.”. He argued that the transition from a two-thirds rule to a three-fifths rule shifted the burden of passing legislation from the minority to the majority. By adopting a requirement of 40 votes to continue the debate, the minority will have to be prepared for multiple rounds of voting that may contain all-night sessions and extend into a few days and weekends. Under this threshold, the minority will have to be present whenever voting is in session while allowing the majority leader to call votes at a more flexible time frame.
Senators who want to filibuster the issue will be pushed to continuously talk about their reasons for opposition to convince more people. As a result, it puts the spotlight on the issue and attracts public attention, which will help voters to make decisions in choosing the right candidate that will serve their interests. It will also indirectly empower the public by offering more information on how political leaders stand on important issues.
He argued that even if not necessary, it may also be beneficial to welcome a return of the talking filibuster component to force Senators out of their comfort zone and push them to stay on the floor for the whole time.
Apparently, the reform won’t come easy as the minority will do anything in their power to prevent a 60-vote from being made. Under the cloture rule, any decisions, including changes to the Senate structure, will also need cloture to stop the debate. With a 50+1 slight majority (1 is from Vice President Harris), it is a difficult task for Senate Democrats to collect the rest 9 votes. Even worse, not every Democrat is on the same boat of reforming the Senates, and some have clearly voiced their objection to amending the filibuster. Hereby, if the Biden administration is expecting to see the change happen, the only and best solution is to persuade Senate Independents and some Republicans to side with them. This won’t be an easy task for him.
We have had a few decades with this structure that is inefficient and represents the country’s history of systematic racism. With a Democratic President, a Democratic-led Senate, and a Democratic-led House, now is the best time to reform or abolish the filibuster. There will be many obstructions, but progress can’t be undone because of its difficulty. It must be done because of its imperativeness and rightness.
Note: The first version of this article was written in December 2021