The Fate of the FilibusterThe Daily
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- 28 Jan 2021
As Democrats and Republicans haggled over how to share power in the Senate, Mitch McConnell, the minority leader, made one key demand: Do not touch the filibuster rule.Today, we explore the mechanics and history of the rule and look ahead at its fate. Guest: Julie Hirschfeld Davis, the congressional editor for The New York Times. For an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. You can read the latest edition here.Background reading: The debate over the minority’s ability to filibuster legislation has foreshadowed a fraught landscape ahead over what Democrats should do if Republicans obstruct President Biden’s agenda.Mr. Biden doesn’t want to eliminate the filibuster, which can be an impediment to major legislation. Left-leaning Democrats disagree, but they’re holding back for now.For more information on today’s episode, visit nytimes.com/thedaily
From New York Times, I'm Michael Barbaro. This is The Daily. Today, that I should be the leader of this new Senate majority is an awesome responsibility as Democrats and Republicans in the Senate haggle over how to share power, we have no choice but to try to work together in a chamber split 50 to 50.
So let us begin.
The Republican leader, Mitch McConnell, made one unconditional demand.
It's the talk of unity on common ground is to have meaning. Do not touch the filibuster rule that I cannot imagine.
A Democratic leader would rather hold up the power sharing agreement than simply reaffirm that his side won't be breaking the standing rule of the Senate, a rule that many Democrats believe must be destroyed to get anything big done in the Biden era and many Republicans believe must be saved to block the Biden agenda. My colleague Julie Davis on the coming battle over the filibuster.
It's Thursday, January 20th. So, Julie, help us understand the filibuster rule, which I think a lot of people think they understand, but they really don't, right.
So most people, when they hear filibuster, they think of someone talking on and on as a way to delay something in the Senate. And that's true. That is a filibuster. Then there's the filibuster rule. This is the thing that's being debated in the Senate right now, and it is the mechanism for stopping a senator from going on and on and on and allowing the Senate to move to a vote. And in its current form, it requires 60 votes to do that.
So you need to be able to get three fifths of the Senate to agree that we're going to stop talking about this and move on to a vote or move on to consider something before you can do it. So that's its main effect. And in a lot of ways, it is kind of the ultimate expression of what the Senate is about. The Senate operates on consensus. It's not enough to just have a majority plus one. And that is kind of the nature of the Senate as opposed to the House.
It is supposed to be, they call it the cooling saucer, where members are taking more time and deliberating more carefully and cutting deals and discussing more thoroughly legislation rather than the House where majority rules, the minority really can't stop anything. And whatever 50 percent of the members want to do, that's what happens. The Senate has always prided itself on being a very different place that operates in a very different way. And the filibuster has become one of the main reasons why.
So it has become really the core of the way the Senate works and more recently, the way the Senate has become paralyzed, because it's really difficult to get the agreement of 60 senators to move forward on pretty much anything.
OK, and so at this moment in this unusual 50 50 split, what it means on a practical level, correct me if I'm wrong, is that Democrats with their 50 seats need 10 Republican votes to pretty much do anything. That's right. So help me understand the history of the filibuster rule where it comes from and how it has been used.
Well, the filibuster, even though I did say that it sort of is the heart of what the Senate is about, it was not actually an original feature of the Senate. It's not in the Constitution. It was a rule that was established in 1917. Initially, it was two thirds of the Senate. Sixty seven votes to be able to cut off debate and move on. And then it was changed in nineteen seventy five to three fifths. So it's 60 votes.
And perhaps the most famous example is former Senator Strom Thurmond, the late Senator Strom Thurmond of South Carolina, using the filibuster in nineteen fifty seven to stop the civil rights law from going forward. He talked for nearly twenty four hours. In that case, it was just him on the floor for the entire time and he was essentially blocking this major civil rights measure from going forward. And then there was a reprise of that seven years later when Thurmond and several other Southern segregationist senators filibustered the 1964 Civil Rights Act and essentially delayed for a couple of months the Senate's ability to move forward on that.
So it has a very long and storied history of being used to really stand in the way of what we think of now as some of the biggest policy initiatives that are at the heart of what this country is.
So this is a very dark use of the filibuster. And what these senators were up to was delaying the point at which 60 of their colleagues could vote to actually pass the civil rights legislation, which ultimately did pass. That's right.
At that time, the senators needed sixty seven votes. And by getting up and speaking for almost a full day, Thurmond is registering his opposition not just to the bill itself, but to moving forward on it at all. And unless there were 60, 70 senators who agreed to shut him down, he could keep talking and talking. And it has remained through the years a singular mechanism for delaying or blocking legislation and also nominations. And it has become more and more a thorn in the side of the majority.
And so in twenty thirteen.
The American people believe Congress is broken. The American people believe the Senate is broken and I believe the American people are right.
The Democrats, led by then Senate Majority Leader Harry Reid, after many, many months of feuding with Republicans who were refusing to confirm or allow nominations from President Barack Obama to go forward in the Senate.
Some two hundred and thirty plus years, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama administration. This president, two hundred and thirty plus years, 50 percent, four and a half years, 50 percent. Is there anything fair about that? Senate Democrats who then had control of the chamber decided to take a pretty extreme measure, something that had never happened in the history of the Senate.
The change we proposed today would ensure executive and judicial nominations an up or down vote on confirmation, yes or no, and change the rules so that the filibuster could no longer be used for executive nominations, including judicial nominations.
Today, Democrats and independents are saying enough is enough to change. The rules regarding presidential nominees will apply equally to both parties when Republicans are in power. These changes will apply to them just as well. That, Mr. President, is simple fairness.
And so the Democrats used what's called detonating the nuclear option. Wow, it's evocative. It's a procedural bomb. And the way that it works is even though it takes 60 votes to move forward with a nomination or legislation, it only takes a majority of the Senate to change the rules.
So under the precedent set by the Senate today, November 21st, 2013, the threshold of nominations, not including those the Supreme Court of the United States is now a majority, but that is the ruling of the chair. And that was it. They shaved off a big part of what the filibuster does and this change that was made in twenty thirteen was viewed as a pretty extreme thing to do. The Senate operates, as I said, on consensus. There's a set of rules and precedents that drives everything that gets done.
And this was a very. Bare knuckled move on the part of Democrats to say this rule that we've all been living under for all these many, many decades is simply standing in the way of progress. And we're going to use our power as the majority to change it.
And so Democrats change the filibuster rule just for presidential nominations, specifically for the judiciary.
And they were able to do that with 51 votes, even though there will involve 60. I don't know how you keep track of all this. Truly covering the Senate seems like a nightmare. But they were able to do this.
They were able to do it.
And let's remember that it was Senate Democrats who pioneered, who literally pioneered the practice of filibustering circuit court nominees and who've been its biggest proponents.
And the very recent past Republicans burned them at the time that this was wholly inappropriate use of their powers in the Senate.
And now they want to blow up the rules because Republicans are following a precedent.
They themselves that this was doing away with an important rule and an important tool, and that when the tables were turned, they were going to have to live with the consequences that they created, that they would live to regret this, say to my friends on the other side of the aisle, you'll regret this and you may regret it a lot sooner than you thought.
And do Democrats come to regret this? They do, and it's only four years before they do because President Trump wins the election in twenty sixteen and in twenty seventeen, he has the opportunity to nominate his first Supreme Court nominee, Neil Gorsuch. And Democrats quickly say that they're going to have to look at this very closely and they may not be willing to move forward with this. And there is clearly a threat that they are going to filibuster President Trump's Supreme Court nominee.
And Republicans turn around and have their revenge. And they say what was good for you when you were in the majority is good for us now that we're in the majority and potentially facing obstruction of our president's Supreme Court nominee. And they do the very same thing that Democrats did in twenty thirteen. They detonate the nuclear option and eliminate the last bit of power to filibuster a judicial nominee, making it impossible to do that for a Supreme Court nomination. Right.
And knowing that they only need 51 votes to put a Trump appointed Supreme Court justice on the court. Republicans get those fifty one votes for Neil Gorsuch and later for Brett Kavanaugh and for Amy CONI Barrett. And it's a classic. Be careful what you wish for a moment, because Democrats decision to end the filibuster rule on judicial nominations below the Supreme Court. Opens up the chance for Republicans to then and the filibuster rule on Supreme Court nominees, right.
It allowed Mitch McConnell to push through a ton of lower court judicial nominees and allowed President Trump to win with a simple majority confirmation of three conservative Supreme Court justices.
So at this point, we see pretty clearly the problems with the filibuster rule. We can see how it allows the minority to delay and in some cases block essential and just causes like civil rights protections. And we can see the problems with eliminating the filibuster rule, how that can haunt the minority when it comes to something like the American judiciary and what it looks like. So the filibuster rule is a pretty tricky affair, right?
Like any power worth having. It has its advantages and it has its risks and drawbacks. And getting rid of it has its own set of issues.
And that's exactly what the Senate is grappling with right now. It is why Mitch McConnell is trying to exact these promises from Democrats that they're not going to get rid of the filibuster rule and why Democrats feel like they really are not in a position at this point to make that promise all the way back. Perhaps you've resolved to be more present this year for your family and friends and for yourself, and you think that learning to meditate might help?
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What is former Senate Majority Leader Mitch McConnell asking Democrats specifically to commit themselves to doing or not doing when it comes to the filibuster rule?
McConnell is asking Democrats to promise that they will not do what both he and the former Democratic majority leader Harry Reid did and detonate the nuclear option to get rid of what is really the last bit of filibuster power. There is the power to filibuster legislation. He's asking them to promise up front that they will not get rid of that part of the rule and thus preserve the minorities ability to delay or block legislation for the entirety of their control of the Senate.
And what is McConnell's argument to Democrats for keeping it in, requiring them to promise publicly that they will get rid of it?
The Senate exists to require deliberation and cooperation.
He basically is making the argument that the filibuster is fundamental to what the Senate is.
If the Democratic majority were to attack the filibuster, they would guarantee themselves immediate chaos. And destroying the filibuster would drain comity and consent from this body to a degree that would be unparalleled in living memory and that eliminating the minorities ability to have its say on legislation would make it a place where the majority rules and legislation is made according to the whims of the moment.
So instead of building a stable consensus. We be chaotically swapping party platforms, swinging wildly between observations that would guarantee half the country is miserable and resentful at any given time.
And he's also making an appeal to President Biden and the Senate leadership and saying, you all say that you want unity. You all say that you want to have bipartisan accomplishments. If you really want that, what you need to do is demonstrate that by taking this bare knuckled tactic off the table and saying that you will never deprive us the minority of the ability to filibuster the legislation and therefore we can all negotiate in good faith going forward.
Taking that plunge would not be some progressive dream. It would be a nightmare, I guarantee it.
But to be clear, McConnell has a great deal of self-interest in keeping the filibuster while he is talking about institutional prerogatives and tradition.
But this is also about power.
Absolutely. Mitch McConnell has just had to give up his job as majority leader. He no longer is running the Senate. And the filibuster really is his most powerful tool and the most powerful tool that Republicans have to stop President Biden's agenda to prevent Democrats from getting done what they want to get done. And so, of course, he has a huge interest in exacting a promise, if he can at the very outset, that Democrats are not going to essentially neuter Republicans ability to stop legislation if they oppose it.
McConnell's position and this demand he's making to Democrats, it seems to assume that Senate Democrats want to get rid of the filibuster rule. Is that actually the case?
Many Senate Democrats have said that they do want to get rid of the filibuster rule, that it's standing in the way of progress and that it is time to clear it away and allow big sweeping legislation that has been bottled up while the Senate was under Republican rule to finally go through things like tackling climate change, doing something about income inequality, racial justice, the pandemic relief package that everyone's been talking about. Some of these initiatives are so important. These Democrats would argue that while they have the power, while they have the numbers in the Senate, they need to push through as much bold policy as they can and use what power they have to do that with the knowledge that they won't be in the majority forever in a 50 50 Senate.
The likelihood that the Republicans take over in two more years is pretty good, but their idea is OK, so we just press go and jam a bunch of things through. That should have happened a long time ago.
So the argument here from some of these Senate Democrats is this is our moment. We've got the majority. Just do it. Just get rid of the final remnants of the filibuster rule, even though we know from what happened in 2013 that this will someday come back and haunt us because we won't control the Senate forever.
Right. And I think there is also, let's call it, a hope that voters would see this, they would see all of these priorities that have languished with no action getting done and that they would actually reward Democrats and frankly, punish Republicans who tried to stand in the way.
So given all of that, what ends up happening in these negotiations between Mitch McConnell and the Democrats? So what ends up happening is Schumer says, no way, I'm not giving you this assurance, Democrats feel that taking this threat off the table would just be fighting with one arm tied behind their back. And they're not willing to give up on the possibility that they might one day want to eliminate the filibuster. But McConnell backs down because he says that he has gotten assurances from Joe Manchin of West Virginia and Kyrsten Sinema of Arizona to centrist Democrats who have told him and stated publicly that they would never vote with the rest of the Democrats to eliminate the filibuster and without their votes, it can't happen.
So he says with these assurances in hand, he's willing to drop his demand for a formal promise from the majority leader and go forward, organize the Senate. The Democrats can have their committee gavels and everyone can go on their merry way.
Should we consider these assurances from Senators Manchin and cinema? Permanent or should we think of them as many things in the Senate, as fungible and temporary as something they might ultimately reverse themselves on?
Well, they've been pretty clear of what their views are right now, and they say that they're not changing their minds. But I think the possibility is still there and is frankly hanging over the Senate and will continue to hang over the Senate that they could change their minds. If Democrats push forward and find a wall of Republican resistance and filibuster after filibuster after filibuster, they could very well decide that this is untenable. This is not a way to get anything done, which, after all, is what they've said they want.
And already, one of the centrists who has been against getting rid of the filibuster, Jon Tester of Montana, has said that he has this view now. But if McConnell thinks that he can stand in the way of everything and block action, he may very well have to change his view because his patience isn't infinite to someone who has covered Congress for a really long time.
I'm curious what it tells you, that we have gotten to this place where not much of the filibuster rule remains.
But the part that remains. Could go away and be historic and it would be an enormous change in how the Senate operates.
So how are you thinking about that? Well, I mean, the Senate has become really a den of paralysis in recent years, and it's been frustrating to members of both parties. And I think what this debate is really about is everyone's diagnosed that same problem and they're just disagreeing over what the cure is. And it was so interesting. Back in December, there were two senators, one Republican, one Democrat retiring, and they both gave their farewell addresses on the floor.
And Lamar Alexander from Tennessee, the Republican president.
I think my friend Mitch devoted his to saying, you know, this place is so broken, nothing gets done. We really need to rediscover the lost art of legislating.
Lately, the Senate has been like joining the Grand Ole Opry and not being allowed to sing.
It's a real waste of talent and how we have to protect the filibuster, that eliminating it would destroy the Senate.
Now, some advocate operating the Senate in a different way. And the filibuster, don't worry about party lines, pass everything with a majority vote.
He said it would turn into a second House of Representatives.
Ending the filibuster would destroy the impetus for forcing the broad agreements I've been talking about, and it would unleash the tyranny of the majority to steamroll the rights of the minority.
He was very determined to leave the Senate with this message of don't break down the one tool that still remains to generate consensus in this institution. And then Tom Udall from New Mexico, a Democrat, came along a couple of days later and gave his farewell speech and said all the same things about how broken this institution was, is broken.
The Senate is broken and it's not working for the American people. We are becoming better and better political warriors, our peacemaking skills are atrophy. But unfortunately, the structures we have built reward us for hurting one another. We need to reform those structures or we'll never make progress, but the conclusion he drew was completely opposite. He said it was time to get rid of the filibuster.
I've proposed Senate rules changes to make sure this institution does not remain a graveyard for progress. The promise of the filibuster is that the majority will find common ground with the minority. But the reality of the filibuster is paralysis.
A deep paralysis, nothing important, nothing that really needed to happen was going to get done. And so that is kind of the fundamental tension that we're seeing play out right now. You have a new president who has said he wants to get big things done, but he's also said he wants unity and bipartisanship and those two things may be at odds and we'll just have to see whether they are. And the fate of the filibuster is pretty much going to turn on the answer to that question.
Thank you, Julia. Appreciate it. Thanks, Michael. We'll be right back. Brought to you by Harper Collins in celebration of Cicely Tyson's memoir, Just As I Am, Miss Tyson reveals her life as an actress was won over stage and screen and found her roots and how to get away with murder. And as a mother, daughter and dreamer of audacious dreams, who has something meaningful to say. President Barack Obama says in her extraordinary career, Cicely Tyson has not only succeeded as an actor, she has shaped the course of history, just as I am, by Cicely Tyson, available wherever books are sold.
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