WASHINGTON, DC – JANUARY 23: Senate Majority Leader Mitch McConnell (R-KY) walks to the Senate floor following a recess in the impeachment trial of President Donald Trump at the U.S. Capitol on January 23, 2020 in Washington, DC. Democratic House managers will continue their opening arguments on Thursday as the Senate impeachment trial of President Donald Trump continues. (Photo by Drew Angerer/Getty Images)
This week the U.S. House of Representatives passed H.R. 1, the For the People Act. A major Democratic priority, the bill would require states to institute same-day voting registration, automatic voter registration, and early voting for at least 15 days before the election.
The House-approved also would expand vote-by-mail, declare Election Day a federal holiday, regulate state voter purges, establish voting rights for felons, require disclosure of campaign contributions to so-called dark money organizations, and ban partisan gerrymandering.
Coming on the heels of record voter turnout in the 2020 elections, the FTPA is popular with Democrats, independents, and Republicans. A Data for Progress poll taken in mid-February showed two-thirds of the electorate support its enactment.
Though it attempts to strengthen democracy in America, H.R. 1 is unlikely to become law because of an anti-democratic rule in the U.S. Senate: The filibuster.
Filibusters have been so frequently used and threatened by both parties that it is common to say that proposed measures need a three-fifths majority or 60 votes – the number required to stop debate – to pass the Senate.
Last I checked the U.S. Constitution, the rule for passing bills was a simple 50%+1 majority in both houses of Congress.
Alas, 50 percent+1 is exactly the Democratic majority in the Senate. The 10 Republican votes needed to pass H.R. 1 are nowhere in sight.
Now that they are the minority party in Washington, Republicans say the filibuster prevents the tyranny of the majority. Furthermore, defenders say the filibuster gives individual legislators the means to stop bad ideas from becoming law.
Filibuster opponents say the problem with American democracy today is tyranny of the minority.
Though filibustering is woven into the Senate’s identity, it was not part of the original design by the Framers of the Constitution. Rather, according to Congressional expert Sarah Binder of George Washington University, the procedure arose by accident in the early 1800s.
During most of the 20th century, 67 votes or 2/3s of the Senate were required to stop debate. When the filibuster of the Civil Rights Act by Southern senators was finally broken in 1964, efforts to weaken the rule’s power began in earnest.
In 1970, the Democratic leadership established a two-track rule, allowing Senate business on other matters to continue when a filibuster of a particular bill commenced. Five years later, the required number for closing debate was reduced to the present 60 votes.
Ironically, the effect of both reforms was to increase the number of filibusters, as the costs of stopping legislation were reduced.
As both parties became more polarized ideologically in the 1990s and 2000s, filibusters became weapons for party leaders to mobilize the base.
At the same time, party politics is engineering the filibuster’s demise.
Republican obstruction of Obama nominees escalated to the point that, in 2013, Democrats ended filibusters of presidential nominees to the executive branch and the lower federal courts.
Facing a Democratic blockade of Trump Supreme Court nominees in 2017, then-U.S. Senate Majority Leader Mitch McConnell, R-Ky., expanded the ban on filibusters to all judicial appointments. Justices Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were subsequently confirmed to the Court.
What’s left of the filibuster is the ability to delay ordinary legislation, and policymakers have devised workarounds there as well.
Both parties have used the reconciliation procedure in the Budget and Impoundment Act of 1974, which prevents filibusters of overall budget instructions to the appropriations committees, to pass major legislation.
Republicans employed reconciliation to pass the 2017 Trump tax cuts, and Democrats plan to use it to enact the $1.9 trillion COVID relief bill this month.
However, reconciliation has its limits, as President Joe Biden and Democrats discovered when the Senate parliamentarian ruled that the COVID plan cannot include another popular proposal, raising the federal minimum wage to $15 an hour.
Given its erosion over the last decade and the intense pressure to eradicate it, the filibuster’s days appear numbered. All Democrats need is a simple majority of the Senate.
However, it appears the procedure will continue for the time being, as U.S. Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., do not want to do away with it.
Heavy-handed pressure on Manchin, who represents a state that voted to re-elect Trump by 40 points, could backfire. Manchin can switch parties anytime and make McConnell Senate Majority Leader once again.
So, H.R. 1 is likely to be in Senate limbo, just as Pennsylvania and 40 other states are considering over 250 measures to restrict access to voting, and the U.S. Supreme Court prepares to weaken the Voting Rights Act yet again.
It’s time to stop filibustering the filibuster. Only the few will mourn its passing.
Opinion contributor Fletcher McClellan is a political science professor at Elizabethown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.