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In his first news conference of his administration, President Joe Biden was asked to weigh in on recent discussions about the Senate filibuster. He says he favors reinstating the talking filibuster. “If we have to, if there’s complete lockdown and chaos as a consequence of the filibuster, then we’ll have to go beyond what I’m talking about,” Biden said.
Other Democratic leaders are arguing that the filibuster in inherently racist and should be eliminated. “The filibuster has deep roots in racism, and it should not be permitted to serve that function, or to create a veto for the minority,” says Sen. Elizabeth Warren of Massachusetts. “In a democracy, it’s majority rules.”
What is the filibuster?
To understand the filibuster, it’s necessary to understand what the Senate is intended to be.
This chamber of Congress has sometimes been referred to as “the world’s greatest deliberative body.” The founders designed it as the chamber in which issues were thought about and discussed extensively so decisions about public policy were made carefully.
A deliberative body or assembly is a gathering in which members of a group use parliamentary procedures (the process for proposing, amending, approving, and defeating legislative motions) to manage this discussion and debate in an orderly manner.
The Senate was designed to be a legislative body focused on extended, free debate. Over time, there also developed a sense that the rights of Senators in the minority party (whichever party does not have a majority in the Senate) needed to be protected.
As the Congressional Research Service explains: “The Senate’s standing rules place greater emphasis on the rights of individual Senators—and, therefore, of minorities within the Senate—than on the powers of the majority. The Senate’s legislative agenda and its policy decisions are influenced not merely by the preferences of its Members but also by the intensity of their preferences.”
Debate officially occurs when senators speak on the Senate floor. According to paragraph 1(a) of Rule XIX, which governs debate in the Senate:
When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.
This rule means that senators can keep debating an issue until they decide to let another senator speak. Since other business cannot officially be conducted when such debate is occurring, the result is that an individual or group of senators can filibuster, a loosely defined term for action designed to prolong debate and delay or prevent a vote.
This is sometimes referred to as a “talking filibuster” since it required the senator to hold the floor by speaking. In actual practice, most uses of the tactic are “silent filibusters” that don’t require an individual to keep talking. Senate leadership avoids the legislative shutdown by preventing heavily disputed bills from being considered for debate.
How are filibuster stopped?
The Senate is not only a deliberative body, but is also a decision-making body. It needs to “balance between the rights guaranteed to senators under the standing rules and the need for senators to forgo some of these rights in order to expedite business.”
Eventually, the debate about an issue must end so that individual Senators can vote to decide the issue. But there are few limitations in the Senate rules about how long a senator can debate an issue.
The only formal procedure that Senate rules provide for breaking filibusters is to invoke cloture under the provisions of Rule XXII (commonly called the “cloture rule”). Under the cloture rule, first adopted in 1917, the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.” (In 1975 the Senate reduced the number of votes required for cloture from 67 to 60.)
Persuading 60 Senators to agree to end a debate is often difficult, since it almost always requires bipartisan agreement to end debate.
Some Democratic senators want to amend the rule to either require a “talking filibuster” or to eliminate the filibuster altogether.
Why are filibusters effective?
Debate on the Senate floor rarely changes the minds of senators. So why are filibusters an effective tactic?
Think of the legislative process as a conveyor belt at a factory that produces legislation. A filibuster essentially stops the conveyor belt and prevents any other legislation from coming down the assembly line. Senators have an almost unlimited number of issues they’d like to have considered but limited time.
To prevent all of their agenda from being disrupted, senators may determine the prudent move is to give up on a bill and move on rather than allow a senator to hold up other legislation through a filibuster. That’s why even the threat of a filibuster is enough to keep legislation from being considered.
Can Senators filibuster any legislation?
Almost any legislative proposal can be subject to a filibuster. The exception is provisions of law that limit the time available for debating them, such as budget reconciliation.
Also, in 2013, Democrats in the Senate set a precedent of preventing filibusters of presidential nominees. In 2017, Republicans in the Senate broadened that precedent to include Supreme Court nominations.
Is the filibuster inherently racist or a relic of the Jim Crow era?
Last year, former President Barack Obama referred to the filibuster as a “Jim Crow relic.” Since then, many other politicians—such as President Biden and Senator Warren—have claimed the filibuster is rooted in a legacy of white supremacy.
Although the Senate filibuster predates the Jim Crow era by at least 30 years (the filibuster was first used in 1837; Jim Crow laws began around 1865), the filibuster was used frequently to prevent passage of civil rights legislation during the 1950 and 1960s. South Carolina Senator Strom Thurmond, for instance, holds the record for the longest single-person filibuster when he talked for 24 hours and 18 minutes to filibuster the Civil Rights Act of 1957.
But such past misuse does not make the filibuster an inherently racist rule. And many of those who make such claims now supported the filibuster when they thought it would benefit them.
As an Illinois senator, President Obama argued, “If the majority chooses to end the filibuster, if they choose to change the rules and put an end to Democratic debate, then the fighting and the bitterness and the gridlock will only get worse.”
Senator Ben Sasse of Nebraska recently asked on the Senate floor why, if they believe it is racist, so many Democrats have used the filibuster.
“Was the filibuster really a tool of Jim Crow when it was used against Tim Scott [an African-American senator] last year?” Sasse asked. “If somebody wants to come to the floor and repent of their racism for having used the filibuster last year, please do.”
Senate Minority Leader Mitch McConnell made a similar comment. “Did [Democrats] use a racist relic when they delayed the CARES Act or blocked legislation to protect unborn babies who can feel pain?”
Why should Christians care about the filibuster?
Whether Christians should support or oppose the elimination or reform of the filibuster is debatable. But what is certain is that its elimination would have profound ramifications for policy related to issues on which Christians have a particular concern, such as abortion and religious liberty.
For example, the filibuster is currently the only impediment to the passage of the Equality Act, a bill that would amend two landmark civil-rights laws—the Civil Rights Act of 1964 and the Fair Housing Act—to change the definition of “sex.”
According to the bill, “sexual orientation” means homosexuality, heterosexuality, or bisexuality, and “gender identity” means the gender-related identity, appearance, mannerisms, or other characteristics of an individual, regardless of the individual’s sex at birth.
The Ethics and Religious Liberty Commission has said, “We believe that the Equality Act represents the most significant threat to religious liberty ever considered in the United States Congress.”
The elimination of the filibuster would also have an effect on policies related to abortion. Almost all pro-life legislation, such as a ban on the procedure after 20 weeks, has been blocked in the Senate because of the filibuster. As Politico points out, “Experts on abortion politics believe such bills would easily get through a Republican-controlled, post-filibuster chamber and be signed into law if the GOP controlled the House and the presidency.
However we ultimately weigh the effects—whether good or bad—of eliminating the filibuster, we should be aware of how a small change in a procedural rule could have a huge effect on our lives and the lives of our neighbors.