How to pass legislation in the Senate without eliminating the filibuster

How to pass legislation in the Senate without eliminating the filibuster
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There is much confusion about the filibuster these days. Many say that we need to get rid of the filibuster if any substantive legislation is going to get passed in the Senate in the coming years.  

This confusion is due to the lack of understanding of a process which blocks legislation — a process which is incorrectly called a filibuster. There has not been an actual filibuster since the 1960s. An actual filibuster is when a Senator (or a group of Senators) take the floor and talk continuously for hours, days, weeks and even months. This was famously illustrated by Jimmy Stuart in the movie "Mr. Smith Goes to Washington." 

Let us look at the process that was used by the Republicans to block almost all legislation in President Obama's first two years. The Democrats had majorities in both houses of Congress and the presidency, yet the Republican minority found a way to block them. As each piece of legislation came over from the House, Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellHouse to resume mask mandate after new CDC guidance Five takeaways from a bracing day of Jan. 6 testimony McCarthy, McConnell say they didn't watch Jan. 6 hearing MORE (R-Ky.) would tell Majority Leader Harry ReidHarry Mason ReidWarner backing 'small carve-out' on filibuster for voting rights Senate hopefuls embrace nuking filibuster Biden fails to break GOP 'fever' MORE (D-Nev.) the Republicans were going to filibuster it. 

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Reid was afraid that these threatened filibusters would actually take place and would slow down the work of the Senate too much. He therefore set out to formulate legislation that would have the support of 60 Senators — the number necessary to stop a filibuster under Rule XXII, or cloture. He sought legislation that he thought would be "filibuster proof" before he would introduce it. 

In essence, by simply threatening to filibuster, McConnell was able to block legislation without lifting a finger. No Republican senator had to make the effort of standing on the Senate floor filibustering for days and the public had no idea why nothing was getting done.

Reid did manage to get two major pieces of legislation passed during President Obama's first two years — the Dodd-Frank Wall Street Reform Act and the Affordable Care Act.  But both of these were heavily watered down to get 60 vote support. For example, the major problem that Dodd-Frank needed to deal with was "too big to fail."  But the water downed Act was weak and big banks are now bigger than ever.

The key to understanding how to defeat the threat of a filibuster is not to succumb to it as Reid did. This time, when McConnell threatens to filibuster, Senate Majority Leader Charles SchumerChuck Schumer84 mayors call for immigration to be included in reconciliation Senate infrastructure talks on shaky grounds Could Andrew Cuomo — despite scandals — be re-elected because of Trump? MORE (D-N.Y.) should take the bill to the floor and reply to McConnell saying: ‘Go ahead and filibuster. You are welcome to get on the Senate floor and tell the world that you are objecting to preventing global warming, providing health care, reforming immigration, establishing a living wage, assuring voting rights,’ or whatever the Democratic proposal might be. 

An actual filibuster will ensue and will go on; possibly for a month or two. All filibusters in history have ended sometime — the longest filibuster lasted 60 days when the 1964 Civil Rights bill was held up. Sooner or later, all filibusters will fizzle and a simple majority (51 percent) can then pass the legislation. 

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Filibuster proposals should be taken up one at a time to avoid massive resistance to a massive set and to allow concentration on one issue at a time. There should be a one month break between submission of bills to allow other Senate business to be taken care of. 

Let us suppose the worst-case scenario: two months of actual filibustering each bill plus the one month break. Seven bills could be passed in 21 months — seven bills before the 2022 congressional election. Democrats would have this impressive list of major accomplishments to show to voters. This method of beating the blocking will take patience and teamwork. But it will achieve solutions to many problems that have been awaiting action for decades and the Democratic party will be given the credit. 

In order for this to work, several things are necessary:

  • The Majority Leader must be able to get a bill to the floor of the Senate, ready to be debated. Herein lies a major point of blockage — the motion to proceed. This motion, which can be filibustered, means that a minority of 41 can stop a bill from even being considered. This highly undemocratic motion must be eliminated from Senate procedures using the ‘nuclear option,’ if necessary.
  • The absurd practice of upside-down cloture, or calling for cloture before the debate even begins, needs to be eliminated. Use the nuclear option, if necessary.
  • During a filibuster, Republicans will most certainly suggest an absence of a quorum again and again, at any time of day or night. This is how they will try to wear the Democrats down. A quorum in today's Senate requires the presence of 51 senators. All 48 Democrats, plus the two Independents who caucus with them, will have to be available at a moment's notice to meet the quorum call. They will have to make the sacrifice and endure the inconvenience of living and working in their offices. All Democrats will have to be team players. This will be a test of Democrats’ ability to work together and get things done. 

In Nov. 2013, exasperated by the constant threat by Republicans to filibuster confirmation of the president's nominations to executive and judicial positions, Reid used the nuclear option to remove these positions from being filibustered. Later, McConnell used the nuclear option to exempt Supreme Court justice nominees from being filibustered.

When Donald Trump became president in 2017, there were a great many judgeships left unfilled. President TrumpDonald TrumpRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Jake Ellzey defeats Trump-backed candidate in Texas House runoff DOJ declines to back Mo Brooks's defense against Swalwell's Capitol riot lawsuit MORE went to work filling them with extremely conservative and often unqualified judges. Since judicial appointments could not be filibustered, there was nothing the Democrats could do to object to these appointments. And when Ruth Bader GinsburgRuth Bader GinsburgAnti-abortion movement eyes its holy grail Abortion rights face most difficult test yet at Supreme Court Mississippi's attorney general asks Supreme Court to overturn Roe v. Wade MORE died, there was no way to slow the confirmation of the Trump nominee until Joe BidenJoe BidenRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Iowa governor suggests immigrants partially to blame for rising COVID-19 cases Biden officials pledge to confront cybersecurity challenges head-on MORE became president.

Finally, it should be kept in mind that a fundamental principle of democracy is majority rule. But along with majority rule must come minority rights — the right of the minority to be heard.  Pure majority rule without minority rights gives the majority the power to ride roughshod over the minority — this is "tyranny of the majority." The filibuster is a way to assure minority rights. When the minority is left out in the cold (not included in deliberations) anger and resentment is fostered, thus greatly reducing the possibility of comity between the parties.  

David E. RePass is an emeritus professor of political science at the University of Connecticut. He is the author of, "Listening to the American Voter: What Was On Voters' Minds in Presidential Elections, 1960 to 2016."