The filibuster still a head-scratcher

I’m once again going to tell Congress how to do its job.

That’s probably bad form, since they never told me how to do mine when I was editor-publisher of the Jefferson Bee and Herald. They might have disagreed with me. But the First Amendment leaves newspapers pretty much free to publish anything they wish, unless it’s libelous. Newspapers, unlike broadcast media, aren’t licensed by the government. 

The tradeoff is that anyone who can raise the necessary funds can start and publish a newspaper. There are no protected territories or franchises. Newspapers compete with other newspapers and with other media for readers (viewers). 

So maybe I don’t have the right to tell Congress what to do. 



Along with millions of other Americans, I get to choose who gets the right to serve in Congress from my district and state. If I don’t like what they do, I can vote for someone else. If enough of us do that, they have to leave office.

Members of Congress didn’t have to buy my newspaper. They could take it or leave it. They could certainly disagree with what I wrote. But they couldn’t vote to shut it down. 

Like anyone among us, I can disagree with how they run their institution. So I’m going to. 

I think the Senate filibuster is a puzzlement. 

The word “filibuster” derives from an old Dutch word, strained through French, that means piracy or sabotage. The sense is that the filibuster robs a proposed action of its progress through the legislative process. It’s an appropriate word.

It takes a three-fifths majority of the Senate to pass almost any proposed legislation. That’s because under Senate Rule XXII, debate on most bills can continue indefinitely unless “cloture” is invoked. Cloture is the requirement that debate must halt. Cloture requires 60 votes, since 60 represents the magic three-fifths majority of the 100 senators.

With the Senate now divided exactly evenly with 50 Democrats and 50 Republicans, it’s not hard to see that in today’s sharply partisan atmosphere, getting 10 members of either party to vote with the 50 on the opposing side is highly unlikely.

So today, a simple declaration of intent to filibuster by any senator is usually enough to remove a bill or action from the Senate calendar.

Under those conditions, you would think the most controversial proposals would suffer most from the filibuster. You would be wrong.

I know of only two subjects, maybe the most controversial that senators face, that can escape the 60-vote requirement. In other words, they get a free pass around the filibuster.

One is budget bills.

On a limited number of tax and appropriation bills, the Senate majority leadership can invoke the so-called “nuclear option,” and use what’s known as the “reconciliation process” to pass those bills with a simple majority of 50 percent plus one vote.

Since the Constitution directs that the vice president presides over the Senate, and can cast a vote to break a tie, Democratic Vice President Kamala Harris provides the Senate’s Democrats with that all-powerful 51st vote. If “reconciliation” is invoked for a finance bill in the Senate, filibusters are rendered powerless.

That happened just late last week, when the Senate, with a few amendments, approved President Biden’s $1.9 trillion COVID-19 and stimulus bill that had earlier passed the House. If the bill had not been exempt from the filibuster, it never would have received enough Republican votes to succeed.

The other major decision on which the filibuster no longer rules the day is confirmation of Supreme Court justices. 

Until 2013, Senate procedures called for the usual 60 votes to confirm all executive and judicial nominees. That year, the Senate, with a Democratic majority, changed the tradition to require only a majority vote to end debate on those nominees — except for Supreme Court hopefuls. 

In 2017, the Senate, under Republican control, finished off the change by deciding that Supreme Court nominees as well could be confirmed by a simple majority, thereby canceling the filibuster as a buffer against all presidential nominees. 

It seems to me that financial legislation and Supreme Court nominations stand on the top rung of the Senate’s ladder of important actions. And yet those are the two areas that have escaped the shackles of the Senate filibuster.

I suppose Congress’ power to declare war, guaranteed to it by the Constitution, would also count among the issues that occupy that top rung. But the United States has actually declared war only five times in its history, most recently in 1941, so we don’t know whether the Senate would leave the filibuster in place in that momentous decision.

Whether to extend a federal highway to East Overshoe can require a 60-vote majority in the Senate. But confirmation of a Supreme Court justice, or approval of a $1.9 trillion appropriation, takes only 51 votes. 

Go figure.

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