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The Filibuster Should Be Reformed, Not Abolished

Deja Jackson

Posted on June 2, 2021 23:51

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The failure of a bill seeking to create a commission to investigate the January 6th Capital Attack has reinvigorated calls among Democrats to abolish the Senate filibuster. If Democrats want to clear a hurdle to pass significant legislation while also avoiding unforeseen consequences, they should choose which specific cases the filibuster will be eliminated for rather than getting rid of it entirely.

Last Friday, a bill passed by the House to create a commission to investigate the January 6th Capitol Attack similar to the 9/11 Commission failed in the Senate. Despite achieving a majority with the vote count being 54-35, the bill failed to pass the Senate. This was because of the filibuster, a procedure unique to the Senate.

The filibuster originates from the Senate having unlimited time for debate. Unless a Senator stops speaking, the only way to end debate is to invoke cloture, something the entire Senate must vote on. If 3/5 of the Senate votes in favor, debate ends and the legislation being considered can be passed via a simple majority. The rules of the Senate have changed over time, but the current rendition of the filibuster will be focused on.

To cut down on the number of long speeches that were inhibiting the Senate's ability to do business, the rules were changed so that rather than beginning with debate, bills would go straight to a cloture vote. This change has reduced the cost of the filibuster. A Senator (usually one of their staffers), merely needs to send an email indicating their intention to vote against cloture. As a result, legislation requires a de facto 3/5 majority, which is why the question of if Democrats can get the support of ten Republicans is asked every time legislation is considered.

To eliminate the filibuster, the Senate majority leader can use the "nuclear option," a way to change the Senate rules by a simple majority. It has been used twice in the 21st century, both in 2013 and 2017.

It must be remembered that in a democracy, majorities in government are not guaranteed to be permanent. This is especially true in the United States, where the President's party usually loses seats within Congress. In response to their use of the nuclear option, Senate McConnell warned Senate Democrats: "you'll regret this, and you may regret this a lot sooner than you think." This warning rang true when he used the nuclear option to eliminate the filibuster for Supreme Court justices, clearing the way for Justice Gorsuch's confirmation. If Democrats want to pass more of their legislative agenda while also avoiding unforeseen consequences, they should selectively choose which cases the filibuster will be eliminated for rather than abolishing it.

In particular, Democrats should eliminate the filibuster for legislation meant specifically for Constitutional enforcement. Both the 14th amendment guaranteeing the equal application of the law and the 15th amendment guaranteeing voting rights come to mind. In both amendments, Congress empowers itself to enforce them. The civil rights implications of these amendments make it imperative that Congress be able to act quickly. Enacting this rule change would allow the Equality and For the People Acts to pass, two laws relating to LGBT rights and voting rights under the umbrella of civil rights. These bills could then pass without giving ground to the Republicans.

Deja Jackson

Posted on June 2, 2021 23:51

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Source: NPR
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