A Filibuster for Our Time: Make Filibusters Subject to Time, Vote, and Debate Parameters – DC Journal - InsideSources
Not a news flash, the idea that you can craft a solution on a major issue that will get each side in Congress enough of what each wants and thus a strong majority of votes have nearly vanished.
The 2024 election was driven by a populist agenda and candidate, which has translated into a shift in thinking about what government policy should be and in turn how it functions. The public seems fed up with the status quo and hungry for change and ripe for innovative ideas (whether this Admin has strayed from its original election mandate is the subject for another essay). While this will not automatically translate into wholesale change in our government — because change is hard in an institution as large, complex, and far reaching as our federal government – it does present an opportunity to try and solve some persistent problems in how our government functions.
The current debate over the SAVE Act shines a light on one of those areas for change — the Senate filibuster. While not necessarily a household topic, because the SAVE Act requires at least 60 votes to pass the Senate because of the filibuster rule, and which it does not have, the President and others are pressuring Senate Republicans to end the filibuster and pass the bill. And because the current debate is about addressing a specific challenge it creates the opportunity to consider ideas to more fundamentally address the problems presented by the current filibuster structure.
The filibuster is fundamental to the consideration and passage of legislation in the Senate, which is why it continues to be a key topic for discussion regardless of who controls the Senate. What seems clear is that neither party is satisfied with the current structure. However, neither have advanced ideas on how to change the dynamic other than to eliminate it or narrow the instances where a filibuster can be invoked.
In this continual debate there is a question that rarely, if ever, gets asked – is it possible to balance the goals of both sides of the filibuster debate? Can the ability of the minority to filibuster/delay legislation while also allowing the majority to move ahead with legislation be retained? It may sound impossible but if you are willing to think beyond well-trod ground, apply populist logic – it just might be possible.
In considering ideas for change to the filibuster, the history and its function is important. But even this is not simple because there is not just debate, but some fundamental disagreements about the nature of the filibuster. Many believe the filibuster is undemocratic because it gives the minority control of the Senate floor and thus agenda, making it possible to thwart the will of the majority. The challenge to this is the Bill of Rights, which was established to protect individual rights and place limits on the power of the federal government. The idea of a rules-based filibuster provides a similar check on power.
Therefore, based on the argument for the Bill of Rights, the filibuster is a legitimate and valuable tool in the governing process. However, it is not in the Constitution. It is a rule based on tradition that has its beginnings in the early 1800s and evolved from a talking filibuster starting in the1850s to the current rule-based tool.
The current 60-vote threshold was established in 1975. When this vote threshold was created, getting sixty votes was easier as sixty vote majorities were not as uncommon as today, and partisanship was not as strong. However, the last time either party had a 60-vote majority was 2008 when Democrats had 60 votes (including 2 Independent Senators who caucused with Democrats). Since then, partisanship has increased making voting against the party position rare.
So, the challenge is — the majority (whatever party is in control) argues that the filibuster has become a hinderance to governing, conflicts with our norms and established practice of majority rule, with some claiming it is anti-democratic. To the minority party it is a critical tool in welding opposition to the agenda of the majority party and a protector of minority rights.
Allowing the minority to deny a proposal that has majority support (but not 60 votes) from advancing is not a fundamental element of the American tradition, nor in the Constitution. However, allowing the minority party to slow down, try to amend a proposal or to change the public’s mind is part of the American tradition. It is at this intersection where a compromise exists.
Subject filibusters to time, vote and debate parameters.
While the specifics numbers required and timeframes should be debated, the basic idea is to start with a 60-vote threshold then move to smaller vote requirements (56, 54, 52, 50) over a specific time frame (3,6,9,12 months) if the threshold is not reached. At the end of the time limit, the requirement to end debate would only be a simple majority. Hours of debate at each step must be included. This would guarantee a full public debate, giving the minority the opportunity to convince the public to oppose the bill and/or update the bill. It would also have the benefit of bringing a greater sense of organization to the legislative calendar and creating opportunities for compromise.
In the end, this idea would continue to protect the minority party while also allowing the majority to proceed with its agenda and preserve the majority rule norm of U.S. politics. It fits well into the populist mentality and the Constitutional framework of protecting minority rights. The question for the Senate is: Do Senators want to solve a problem facing our Democracy or do they want to preserve a political issue on which they can campaign?
William A. Pierce is a forty-year veteran of Washington. He has worked for two Members of Congress, as a political appointee in the Executive Branch and as a 25-year public affairs executive. He is the... More by William A. Pierce