The Freedom to Vote or the Freedom to Filibuster

10.22.2021 / By Stephen Spaulding

Senate Republicans used a loophole in the Senate’s rules—the filibuster —to block even holding a debate on the Freedom to Vote Act. It’s the third time they’ve stopped their colleagues from debating voting rights legislation this year. Senators now face a choice: protect the freedom to vote and find a way to send this bill to President Biden’s desk, or let it die due to Republican obstruction and abuse of internal Senate rules.

This week, Minority Leader Mitch McConnell and his GOP colleagues blocked the Senate from debating and passing the Freedom to Vote Act—transformative legislation to expand voting rights, ban gerrymandering, curb election sabotage, and break the grip of big, secret money in politics. 

Senate Republicans used a loophole in the Senate’s rules—the filibuster—to block even holding a debate on the bill. It’s the third time they’ve stopped their colleagues from debating voting rights legislation this year. 

Senators now face a choice: protect the freedom to vote and find a way to send this bill to President Biden’s desk, or let it die due to Republican obstruction and abuse of internal Senate rules.

Let’s acknowledge first that “failure is not an option,” as Majority Leader Chuck Schumer has repeatedly said. 

Voters showed up in record numbers to choose new leadership in 2020, despite the deadly pandemic that made in-person voting unsafe for many people. Now partisan lawmakers in some states, fueled by former President Trump’s Big Lie, are pushing new laws to make it harder to vote. Some of these laws will disproportionately affect voters of color. Already this year “at least 19 states enacted 33 laws that make it harder for Americans to vote,” according to the Brennan Center for Justice. 

Congress has the power to set fair national standards to administer elections, which is precisely what the Freedom to Vote Act does (and more). It provides a guaranteed minimum number of days for in-person early voting; access to vote-by-mail for all who want it; automatic voter registration, and more. Of equal importance is the John R. Lewis Voting Rights Advancement Act to repair and strengthen the Voting Rights Act and its protections against racially discriminatory voting laws. Once these bills become law, states will still administer federal elections, but they will do so pursuant to minimum national standards that guarantee everyone’s voice in our democracy, no matter your zip code or what you look like. 

With 50 senators and a tie-breaking vote from the Vice President supporting this legislation (the House has already passed three major voting rights bills this year), what is the hold up? Senate rules and the filibuster.

 

What is the Filibuster?

It’s an umbrella term to describe a bevy of tactics deployed by a minority of senators to thwart the majority from taking action. But it’s most frequently used as shorthand for a requirement that bills clear a 60-vote hurdle to advance. President Obama referred to the filibuster as a “Jim Crow relic” at the funeral of the late American hero Representative John Lewis, a nod to its use for decades by white southern segregationists to thwart civil rights legislation.

In a body of 100 senators, the filibuster means that any one senator can require a supermajority of three-fifths of the Senate to vote yes before a bill can pass. This is called obtaining “cloture.” The cloture threshold of 60 is 10 votes more than a simple majority (assuming that the Vice President breaks a 50-50 tie in favor of a bill) that would otherwise be sufficient to pass a bill, assuming all 100 senators vote. The 60-vote threshold gives a minority of senators control over what legislation can pass the Senate. Even if 59 senators want to move forward with a bill, the remaining 41 who oppose can block it under existing rules. And due to the structural nature of the Senate with two-senators-per-state-irrespective-of-population, those 41 senators can represent a much smaller fraction of the American public than the remaining 59. For example, California’s senators represent nearly 40 million people; Wyoming’s senators about 578,000. But they have equal voting power in the Senate.

Before we get into some options to reform the filibuster, it’s important to set the record straight on a few things. First, the filibuster is not in the Constitution. Our founding charter explicitly spells out when a supermajority is required for the Senate to act—for example, overriding a presidential veto, approving a treaty, or convicting someone who the House impeached. Those actions require a Senate supermajority. Passing legislation is not on that list. The Framers considered, and rejected, routine supermajority requirements to pass legislation. Alexander Hamilton wrote in Federalist 22 that such a requirement’s “real operation” would be to “embarrass the administration, to destroy the energy of the government” and substitute majority rule with “the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto.”  

Second, the filibuster is often considered a rule of extended debate—as used today, however, it actually stops debate from even starting, as we saw this week with the Freedom to Vote Act. If you turn on C-SPAN2, which covers the Senate floor, it is exceptionally rare to see a Senator talking until they drop. That’s because today the filibuster is essentially silent—there is no requirement that a filibustering senator actually takes to the floor.

Third, some filibuster defenders say that it drives compromise. But when it is exceptionally easy to filibuster, those who want to shut down action have no incentive to negotiate. Senator Mitch McConnell, a self-proclaimed “proud guardian of gridlock,” is perfectly happy to use the filibuster to shut down negotiations rather than engage in them. The record is littered with defeated proposals—gun violence prevention legislation, including background check legislation; the DREAM Act to reform some of our immigration system; the DISCLOSE Act to increase transparency of money in politics—all died by filibuster. There was no negotiated compromise. A minority of senators simply blocked these bills from advancing. 

So how does a senator filibuster? In short: many matters in the Senate operate by unanimous consent—proceeding to debate legislation, agreeing to parameters of floor consideration, and other similar agreements. If one senator registers an objection, it can force the majority to “file cloture” — i.e., seek 60 votes to move forward. 

There are a number of reforms to the filibuster that the Senate may consider in the coming days and weeks to ensure that the majority can deliver on voting rights and a whole host of other priorities. 

Common Cause has long believed that remedying Senate dysfunction includes allowing it to operate on a majority vote, but there is a whole host of reforms that could remedy some of the dysfunction in the Senate. 

And just this week, President Biden said during a national town hall that “we’re going to have to move to the point where we fundamentally alter the filibuster.”

Here are some options that may be on the table. This list is not exhaustive, but includes some of the ideas in circulation. 

 

Option 1: Lower the threshold for cloture from 60 to something lower. Currently, it takes 60 votes to defeat a filibuster for most items of legislative business. One proposal is to lower cloture from 60 votes to a simple majority. Cloture votes are a rough approximation for filibusters, and a quick glance at Senate cloture data shows that the number of filibusters has risen exponentially in recent years. The Senate made a major change to the cloture threshold in 1975, lowering it from two-thirds of senators present and voting (the functional equivalent of 67) to three-fifths of senators duly-chosen-and-sworn (60 senators). President Joe Biden, then a junior senator from Delaware, voted to lower cloture from the functional equivalent of 67 down to 60. If the 67-vote threshold was a problem in 1975 when the filibuster was far more rare, surely its routine weaponization now should justify a close look at lowering it again. 

Alternatively, rather than require 60 votes of senators duly chosen-and-sworn (which means the 60 vote threshold is constant, even if there are no-shows or vacancies), the Senate could go back to the standard of counting a supermajority of senators “present and voting”—in other words, if some senators don’t show up, the cloture threshold would reduce accordingly.

Another proposal is one that former Senator Tom Harkin introduced when he was in the majority and in the minority: set the initial cloture vote at 60 for a particular matter, but then over a series of days or weeks ratchet the threshold down to 57, to 54, and finally to a simple majority vote. This would ensure that the Senate minority has ample opportunity to slow things down and persuade colleagues of the merits of its arguments, without shutting down debate entirely. Ultimately, the majority would be able to hold a vote. 

The filibuster has been changed throughout history. As discussed below, there are at least 161 exceptions to the filibuster that the Senate has approved since 1969.

 

Option 2: The talking filibuster. Right now, there is no real enforceable requirement that a senator actually hold the floor and speak, like former Senator Strom Thurmond did in 1957 in his attempt to defeat a civil rights bill. Today, the filibuster lets senators register an objection via email or phone and walk away. As Representative James Clyburn put it, the modern day filibuster allows a senator “to sit downtown in a spa somewhere, pick up a telephone and call in a filibuster and effectively stop constitutional rights.” This silent, stealth filibuster was a byproduct of filibuster reforms in 1975 that set up a “dual tracking” system of considering legislation on the floor. It made it much easier to filibuster. 

Senator Jeff Merkley, a champion for filibuster reform, has proposed the return of a talking filibuster. If the minority wants to block a bill, his proposal posits that a filibustering senator ought to stand up and speak until they have exhausted all of their arguments. Then the matter is put up for a vote. This will bring transparency and accountability (and impose a reasonable burden) on the minority of senators seeking to block the majority from taking action. President Biden has endorsed the talking filibuster as something he could support. 

 

Option 3: Flip the burden—force 41 senators to show up on the floor to sustain a filibuster, rather than 60 to defeat a filibuster. This reform is similar to the talking filibuster. It recognizes that it is simply too easy to filibuster by not showing up. Congressional scholar Norm Ornstein of the American Enterprise Institute has routinely put this idea into the mix of reforms. This would force senators who want to block the majority from acting to put up the votes and not skip town. The underlying theory is that there should be a cost to filibustering and trumping majority rule. 

 

Option 4: Carve out voting rights from the filibuster. Another proposal that has gained significant traction is a voting rights or democracy-issue “carve out” from the filibuster rules, or other rules that require a supermajority vote in the Senate. There is strong precedent for this. Congress has provided 161 different exceptions to the filibuster rule in laws enacted between 1969 and 2014, according to research by Congressional scholar Molly Reynolds of the Brookings Institution. Much of President Biden’s domestic infrastructure agenda rests on an exception to the filibuster rules provided for in the budget reconciliation process. It’s also what paved the way for the American Rescue Plan earlier this year. These proposals are advancing pursuant to simple majority thresholds. 

Democrats and Republicans have each taken action in recent years to provide other carveouts to the filibuster. In 2013, Senate Democrats voted to carve all nominations out from the 60-vote threshold except for Supreme Court nominations. In 2017, Senate Republicans voted to carve out Supreme Court nominations from the 60-vote threshold.

This proposal would allow democracy-related and/or voting rights legislation to bypass the filibuster, which is the same track as elements of the Build Back Better agenda. 

 

Option 5: Eliminate the ability to filibuster the “Motion to Proceed.” There are actually several bites at the filibuster apple. The first is on the “motion to proceed,” which is how the Senate formally begins debate on a bill. It only takes one senator to object to a motion to proceed to debate a bill, and if that happens, it takes 60 votes to move forward. This lays bare the distortion that the filibuster is actually about extending debate—-when used to shut down the motion to proceed to legislation, it blocks debate before it even begins. Various proposals for filibuster reform considered in the past would scrap the ability to filibuster the motion to proceed to legislation. Senator Joe Manchin once cosponsored and voted for such a proposal.

Some defenders of the filibuster argue that any changes to the filibuster will mean that it will become a carbon copy of the House of Representatives. But the Senate will never be a carbon copy of the House, at least as long as each person is (theoretically) equally represented in the House, and each state is equally represented in the Senate. And it is worth noting that the House has done its job this year in passing voting rights reforms (three times), gun violence prevention legislation, immigration reform legislation, police reforms, and protections for LGBTQ Americans, among other important matters. 

 

With this week’s continued Senate Republican blockade of legislation to build a better democracy that is more reflective, representative, and responsive, conversations about rules reform will gain necessary urgency. 

Time is of the essence. States are already gerrymandering new Congressional districts that bake in deep partisan advantages. Dark money groups are raising hundreds of millions of dollars to influence elections and the decisions elected leaders make afterwards. And many of these new anti-voter bills that passed are being litigated or will be implemented swiftly. 

Simply put, the freedom to vote is more important than the freedom to filibuster.  

 

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