The Senate tradition of unlimited debate allows for the use of the ‘filibuster.’ Derived from a Dutch word for ‘freebooter’ to describe pirates, the filibuster was a part of the very first Senate session (1789). Pennsylvania Senator William Maclay said the Virginians in the Senate were trying to ‘talk away the time’ so a bill would not get passed. Down through the years, the filibuster rule has been effectively used by both Parties to block legislation. It allows a single Senator or group of Senators to hold the floor for as long as they are able to gain control of the floor. The actual record for the longest individual speech(filibuster) goes to the late South Carolina Senator Strom Thurmond, who spoke for over 24 hours against the Civil Rights Act of 1957.
Prior to 1917, the Senate did not have any rules to end debate and force a vote on a measure. That year, the Senate adopted Rule #22, which invoked closure of debate with a two thirds (67) majority vote. In 1975, the Senate reduced the number to three fifths (60).
At his news conference, last week, President Biden said he agreed with former President Obama, that the filibuster is a throwback from the ‘Jim Crow,’ era and is being abused in a ‘gigantic way.’ He said he might support reducing the closure number to a simple majority (51). This is a reversal of Biden’s position when he served in the body.
Vice President Joe Biden served in the U.S. Senate for six terms (36 years) and once defended the filibuster saying: “I’ve been in the Senate for a long time, and there are plenty of times I would have loved to change this rule (filibuster) to pass a bill or to confirm a nominee I felt strongly about. But I didn’t, and it was understood that the option of doing so just wasn’t on the table. You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain.”
First, the filibuster has protected the political minority from the tyranny of the majority. The cornerstone of a democratic republic is majority rule, however the founders were mindful of the minority. President Thomas Jefferson said, “Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.” Allowing the minority to have a say is fundamental to our system of government.
Second, the attack on the 60-vote filibuster in the Senate is real. A similar filibuster rule was initially part of the U.S. House, but it was removed in 1888. Currently, Senate Democrats don’t have enough votes (50) required to reduce the number for closure of debate because many in their own ranks oppose reduction to a simple majority, but it could happen. It did in the House. The 60-vote filibuster is not a part of the U.S. Constitution. It could be changed. In 2013, Senate Democrats, led by Senate Majority Leader Harry Reid, used the ‘nuclear option’ to eliminate the three fifths vote rule for executive branch nominations. They were having difficulty getting President Obama’s nominations approved. President Trump and Senate Republicans used the change in 2017 to their advantage to end debate on the nomination of Justice Neil Gorsuch.
President Biden once said; “The abolition of the filibuster is a naked power grab. To take the ‘nuclear option’ would be catastrophic. It would destroy America’s sense of fair play. It would tilt the playing field on the side of those who control and own the field.” Senator Biden was right. The pirate rule should remain. It has served America well.
Steve Fair is Chairman of the 4th district of the Oklahoma Republican Party. He can be reached by email at firstname.lastname@example.org. His blog is stevefair.blogspot.com.