FBB Special Report: Parliamentary Pirates

Tom Warwick

They say women talk too much. If you have worked in Congress you know that the filibuster was invented by men. – Clare Boothe Luce, American Author, politician

Derived from the Dutch word for “pirate,” the Filibuster is parliamentary procedure used to delay or prevent legislation by hijacking and “holding” the Senate floor. In use since the early days of the republic, the procedure has become especially controversial in the last few years as both Republicans and Democrats have threatened to significantly curtail its effects.  Since it is likely that we will see some significant action concerning the future of the Filibuster as early as this week, the team at the FBB thought a short primer might be helpful.

In the early days of the Republic, both the House and the Senate were of the opinion that there should be as few limits to debate as possible, believing that elected representatives should have the right to speak as long as necessary on any issue.  While this idea was eventually abandoned in the house, unlimited debate — and by extension the Filibuster — would continue to exist in the more tradition-bound Senate.  The first challenge to the system would come in 1841, when a minority of Senators hoped to block a bank bill sponsored by the greatest Senator ever, Henry Clay. Clay, frustrated by the gridlock, threatened to change the Senate rules to limit debate, and was almost immediately rebuked by his fellow members.    

It would be another seventy-five years until another challenge to the Filibuster would surface. Frustrated by the Senate’s ability to vigorously and repeatedly destroy his legislative agenda, President Woodrow Wilson lobbied his Senate allies for the introduction of a new rule to limit the Filibuster.  The result was Senate Rule 22, known as a “cloture” movement.  The new rule allowed the Senate to end a debate if a supermajority (2/3rds) of its members agreed, creating a means of overcoming the filibuster.  The cloture motion would be used for the first time in 1919 when the Senate invoked cloture as a means to end a Filibuster against the Treaty of Versailles. Even with the new rule, the Filibuster remained an effective tool of the minority party.  While it was technically possible to end debate, to gain the necessary supermajority to end a filibuster was, and still is, no easy task. It would be another five decades before the majority would again successfully end a filibuster by invoking cloture.

In 1975, the Senate would once again revisit the question of cloture and, perhaps unintentionally, turn the Filibuster into an “everyday” tool of the senate. Frustrated with the effective use of the Filibuster by Southern Senators against new civil rights legislation, the members of the Senate cut a deal that would amend the rules to require only a three-fifths majority (7 votes fewer than the original supermajority) to invoke cloture and end a filibuster.  However, in return the “virtual Filibuster” was created. Instead of having to actually stand at a podium and speak “Mr. Smith” style, if a Senator can show that they have at least 41-members supporting them (aka enough to prevent a cloture vote) they can place a hold on a piece of legislation effectively delaying any action on it, even if they aren’t physically at the podium. The physical ease at which a Senator can undertake a virtual Filibuster has resulted in the proliferation of their use. During the late 20th century, the Senate averaged less than one Filibuster per two year session.  In 2008 alone there were 139 Filibusters affecting 70% of all major legislation.

The overuse of the virtual Filibuster, especially on Judicial nominations, eventually came to a boiling point.  In November of 2013, Senate Majority Leader Harry Reid triggered what has been called the “nuclear option.”  The nuclear option involved some… creative parliamentary procedures. In a legislative body, the presiding officer (President or President-pro-tempore) has the authority to interpret the body’s rules. These interpretations are subject to review by the members of the body and can be overruled or sustained by a simple majority vote.  In the case of the “nuclear option,” the Democratic presiding officer ruled that the words “three-fifths of the senators duly chosen and sworn” to mean a simple majority (51 votes).  When the Republicans tried to have this interpretation overruled, the majority Democratic body voted in favor of the chair’s decision and effectively changed the rule.  As a result, cloture can be reached and filibuster ended with just a simple majority on questions of executive appointments, excluding appointments to the Supreme Court, rather than the original 67 or even the reduced 60 votes.

This decision brings us up to 2017, and President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court.  As it stands, the Republican’s do not currently have the 60 votes still required to overcome a filibuster on a nominee to the Supreme Court through conventional means.  The Democrats have announced their intentions to institute a filibuster against Gorsuch, in retaliation for the Republican’s refusal to hold a vote on President Obama’s nominee Merrick Garland.  As a result the Republican’s have to choose between a failed conformation or expanding the Democrat’s rule change to include appointments made to the Supreme Court and further weakening both the Filibuster and the power of the minority.  Senate Majority Leader Mitch McConnell has scheduled a vote for Friday, with the decision on the rule change likely being made moment before the vote. The FBB team will continue to provide you with updates, both on the blog and on our Facebook page, as events continue to unfold.

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