Not all of them have the drama that a disheveled and overactive James Stewart left for film history, in that Frank Capra ode to the ordinary American hero that is Mr. Smith goes to Washington (Knight without sword), 1939. But there are memorable real episodes of filibustering. An archaic and picturesque parliamentary tactic, but which today constitutes perhaps the main containment dam to the renewal social agenda of the Democratic Administration.
In 1957, Southern Senator Strom Thurmond set a record by speaking for 24 hours and 18 minutes against a civil rights bill, the passage of which he failed to prevent despite reading the entire election laws of all 50 states. Of greater thematic richness was Huey Long’s filibustering, which in its effort to block the processing of the New Deal He decided in June 1935 to give his colleagues, probably hungry in the middle of a 15 and a half hour soliloquy, the reading of some jewels from the Louisiana cookbook such as fried oysters. A quarter of an hour shorter stayed in 1992 Alphonse D’Amato, who performed the song South of the Border (Down Mexico Way), perhaps aware that it was the first great filibustering broadcast live on television.
The technique of filibustering has evolved, it has lost its theatrical edge, and has basically turned the contemporary Senate into a House in which laws are passed by a qualified three-fifths majority.
Filibustering allows any senator to object to the House procedure and the vote on a certain bill. The classic way is that of one or more legislators who, standing before their tables, talk for hours, indefinitely extending the debate to prevent the vote since they can speak for as long as they want, and on the subject they want. In 1917, President Woodrow Wilson persuaded senators to pass a rule that would cut off these tirades and put the bill to a vote provided it had the support of two-thirds of the senators. Two years later, that blocking vote was used for the first time, to pass the Treaty of Versailles, which ended the First World War. In 1975, the majority was reduced to three fifths. That is why today we need the vote of 60 of the 100 senators to carry out the controversial projects.
That’s the main reason a growing pile of bills piling up in the Senate, passed by the Democratic majority in the House of Representatives, doomed to languish due to Republican rejection. There are bills on the expansion of voting rights, measures for the control of firearms, important labor legislation and the rights of the LGTBI collective and, since this week, two ambitious bills on immigration, which contemplate ways to give citizenship to millions of undocumented migrants. The great legislative victory of the Biden Administration, the recent approval of the great rescue package to the economy for 1.9 trillion dollars, did win the approval of the Senate, but with a trick: it was necessary to resort to an emergency procedure called budget reconciliation, which requires only a simple majority.
There is a section of the Democratic Party that trusts that the popularity of the rescue package and the pressure to carry out these other initiatives will overcome the reluctance to change the rules of the Senate, so that it can be legislated by simple majority. While it is not clear that such an initiative can prosper, the idea of at least making it more difficult for those who want to block and return to old-school filibustering is making its way.
Today you don’t even need to develop a speech. The minority can neutralize a bill simply by informing the majority that it will take 60 votes to pass it. No getting up and talking for hours – just one senator’s aide sends an email to the Majority Leader.
President Joe Biden himself, who has been a senator for 37 years and has opposed ending filibustering in the past, spoke out in favor of making this technique at least more difficult in a recent television interview. “You must work it for filibusterism,” he said. The idea is to go back to the old days of oral filibuster. That the senators, if they want to block a project, should really stand up and articulate their opposition by speaking publicly for hours, that it is not enough to warn the majority that they will demand 60 votes to approve a project. That would force the Republicans, the minority in this case, not to oppose every Democratic initiative by system, but would choose the measures they oppose most intensely and only in those would they take their blockade to the end.
Put limits on the use of the “nuclear option” in the Senate
Senators have the ability to eliminate the practice of filibustering by resorting to what is known in congressional jargon as the “nuclear option.” It is simply a matter of temporarily changing the Senate rules, ignoring minority objections to a bill or appointment and allowing it to be passed by a simple majority.
This is what the Democrats, led by Harry Reid, did in 2013 fed up with the Republicans’ blocking of appointments promoted by Barack Obama, in his Cabinet and in the judiciary. Four years later Mitch McConnell, the canny leader of the Republican majority as of this January, used that option to win approval for Supreme Court justices’ appointments. That rule change allowed President Donald Trump to seat no less than three magistrates in the highest judicial instance, in lifetime positions. A precedent that leads many Democrats today to resist resorting to the nuclear option to pass their bills.
Nor is it likely that they had enough votes. The Democrats, who now have 50 senators, only achieve a simple majority with the tiebreaker vote of Vice President Kamala Harris. And more than one Democratic senator would oppose resorting to the nuclear option. This is the case with Joe Manchin, the centrist Democratic legislator from West Virginia, who opposes many of his party’s more progressive initiatives.
Republicans promise to fight. Its leader in the Senate, Mitch McConnell, threatened last Tuesday with a policy of “scorched earth” if they decide to touch on filibustering. The truth is that the original technique is almost more demanding for the senators of the majority than for the speakers: the latter can take turns speaking, but the majority party needs to keep at least 50 senators in the House at all times, otherwise the minority could suspend the session due to lack of a quorum. That would include having 87-year-old Senator Dianne Feinstein in the room all night, for example, or Vice President Harris herself whenever Republicans decide to force a vote. In addition, McConnell recalled that Democrats will not always have a majority and that Republicans will also be able to promote, when they return to power, legislation against abortion, against unions and against immigration. “The pendulum would swing both ways,” he warned, “and swing strongly.”
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.