As Republicans continue to promote the Big Lie and put barriers up to voting across the country, there is more urgency than ever for the Senate to act and pass legislation protecting Americans’ right to vote. After Senate Republicans filibustered even having a debate on the For the People Act (H.R.1/S.1) on Tuesday, it is clear that Senate Democrats must do what countless Senators have done before them: modify the filibuster to allow the Senate to function. This task is never more important than when protecting the freedom to vote:
The filibuster can and frequently has been altered:
-
The filibuster is not in the Constitution and the Founders explicitly listed the only instances, such as impeachment, when the Senate would require a supermajority for passage. The filibuster came later as an unintended consequence of a rule change and has been modified many times since.
-
Former Senate Majority Leader Robert Byrd worried that the filibuster would paralyze the Senate. In 1975 and 1980, Byrd made changes to the filibuster rule.
-
Byrd believed in revising the filibuster rule when abuses or circumstances called for it, including reducing the number of votes required to maintain a filibuster.
-
George Carenbauer, former counsel to Sen. Byrd: “The filibuster the way that it’s constructed now. so that nobody has to debate at all, is exactly the opposite of what Senator Byrd wanted. He said that the purpose of the filibuster is to have complete debate. As much as the minority wanted. We don’t have that going on right now.”
-
Ira Shapiro, former counsel to Sen. Byrd: “‘His nightmare scenario was a paralyzed Senate. He would have explored any possibility that allowed the Senate to get the work of the nation done.’”
-
The Senate has altered the filibuster to enshrine a 50 vote threshold in a number of areas, including for trade deals, budgets and tax cuts (reconciliation), and to confirm judges.
-
In the last 50 years, the Senate has used exceptions to the filibuster rules’ supermajority requirement more than 161 times to pass legislation and confirm nominations, and recently did so for the American Rescue Act and the confirmations of Justices Gorsuch and Kavanaugh.
The filibuster no longer serves its purpose:
-
While theoretically in place to encourage bipartisan progress, the filibuster has done just the opposite.
-
Originally intended to force Senators to hold the Senate floor and explain their opposition to a piece of legislation, Senators can now filibuster a bill simply by expressing their intention to do so, making it easier for extremists and partisans to block legislation without accountability.
-
The filibuster has become a tool of partisan abuse.
-
From 1917 to 1970, the Senate took a total of 49 cloture votes (votes to end a filibuster), about one cloture vote a year. During the 116th Congress, there were a total of 298 cloture votes, nearly 150 clotures per year.
-
While the filibuster has most often been used as a tool to block civil rights, the Senate has a history of protecting voting rights with one party support when the other party itself is posing a threat to the freedom to vote:
-
Between 1866 and 1890, many landmark pieces of civil rights laws that were essential to protecting the constitutional rights of Americans of color—including both the Fourteenth and Fifteenth Amendments—passed on strict party-line votes even though they were supported by the majority of Americans.
-
From 1917 to 1994, half of the bills that were successfully filibustered in the Senate were civil rights legislation.
-
In 1959, the Senate altered filibuster requirements after unprecedented filibusters on civil rights legislation.
Once again, the Senate finds itself paralyzed by the filibuster at a moment where inaction is not an option. The modifications and exceptions the Senate has made to the filibuster have often come when the body was gridlocked at a time when action was necessary.
Voting rights are under attack and the Senate is stuck, just as former Senate Majority Leader Robert Byrd feared it would be. That is why Senator Byrd altered the filibuster and why the Senate must now do the same on voting rights.
###