The Case for Nuking the Legislative Filibuster

Senate procedure has yielded tyranny of the minority and subverted democracy

by Eddie Zipperer | Updated 08 May 2017 at 7:38 AM

Senate Rule 22 has had a rough few years. If it were a person, it would look like Bruce Willis at the end of “Die Hard” — bloody face, gunshot wound in the arm, pronounced limp. In 2013, Harry Reid and the Democrats took a chunk out of it so they could confirm Obama appointees with a simple majority instead of a three-fifths supermajority. Last month, Mitch McConnell and the Republicans roughed it up some more in order to get Justice Gorsuch confirmed. Now, Rule 22’s three-fifths supermajority only applies to legislation.

Now that Rule 22 has become the official piñata of the U.S. Senate, Mitch McConnell and the Republican majority would be crazy to wait and allow the next Democratic majority to finish what Harry Reid started. Republicans should change the cloture rule requirement to a simple majority for legislation, and they should do it now.

The procedural filibuster is nothing more than the tyranny of the minority.

Because here’s a little secret that Washington elites don’t want you to know: Cloture doesn’t really require a three-fifths supermajority. It requires a simple 50 percent plus one majority, because a simple majority can change the rule!

Imagine a bar with two entrances. Door No. 1 is guarded by a 250-pound, goatee-sporting bouncer collecting a $10 cover charge. Door No. 2 has no bouncer and no cover charge. And it’s not a fire door that blasts an alarm when you open it — it’s a totally legitimate entrance.

So, does this bar actually have a $10 cover charge? Only if you’re a sucker.

Now imagine that you don’t have the $10 you need to go through door No. 1. Now imagine that entering the bar could lower taxes, secure the southern border, and help repeal and replace Obamacare. You don’t just shrug your shoulders, mutter, “Well, we tried,” and go home. You take door No. 2!

The supermajority requirement is a mirage, a piece of swamp decorum that’s celebrated by the politics-as-usual D.C. establishment crowd who cheer for every barrier erected against actual democracy.

Why would Senate Republicans insist on taking door No. 1 and voluntarily allow majority-supported legislation to be blocked by Senate Democrats? Especially in a political climate where Americans have clearly given conservative policies a crystal-clear, across-the-board mandate? Voters didn’t give conservatives control of every branch of government because they long so much for the Senate to block conservative legislation.

Do Mitch McConnell and Senate Republicans believe that Rule 22 — which has been chipped away at by both parties whenever convenient — is more important than which policies the American people are forced to live under? Rule 22 is not sacred. It doesn’t harken back to the nation’s founding. And changing a supermajority to a simple majority doesn’t damage democracy, as progressives like to whine on Twitter. Simple majority rule is actually the right-there-in-the-dictionary definition of democracy. It’s supermajorities that damage democracy.

In case you think Rule 22 is some grand design handed down by the founding fathers, here’s a brief history of killing debate in the Senate:

From 1789 to 1806, a simple majority could stop debate using the “previous question” rule. Scrapping that rule was the brainchild of the famous alleged traitor, current Broadway antagonist, and Alexander Hamilton shooter, Aaron Burr.

Until 1872, the presiding officer of the Senate could unilaterally stop debate. Debate had to come to an end before a vote could be held, which led to the golden age of the actual talk-till-you-drop filibuster. That lasted until 1917 when President Woodrow Wilson championed Rule 22, which originally allowed a two-thirds supermajority to stop debate. Then, in 1975, the supermajority was lowered to three-fifths. In 2013, it was lowered to a simple majority for non-Supreme Court presidential appointees. Finally, in April it was lowered to a simple majority for Supreme Court appointees.

The term “nuclear option” for getting rid of the cloture supermajority is a misnomer — a media invention to make majority-rule democracy sound like an end-of-the-world, nightmare scenario that leaves behind a mushroom cloud. In reality, there’s nothing explosive about majority-rules democracy. That’s what democracy is, and it’s how the framers expected the Senate to work. That’s why the vice president has the power to break a tie when the Senate is “equally divided.” There’s no constitutional procedure to stop the minority party from exerting the tyranny of Rule 22 because Rule 22 has nothing to do with the Constitution. The real “nuclear option” is what’s called the procedural filibuster —a nasty side effect of a 1975 amendment to Rule 22 that lowered the cloture threshold from two-thirds to three-fifths.

Here’s what changed in 1975: A Senate filibuster no longer requires a senator to tote a copy of the phone book and a box of throat lozenges to the Senate floor. They don’t require gigantic speeches that end with collapsing senators. Now, they just require a 41-senator minority to say they’ll filibuster. That’s it.

So, in its current form, Rule 22 —a rule designed to limit the filibuster — actually feeds the filibuster steroids and makes it an all-powerful weapon, not just of delay, but of obstruction. Rule 22 demands a supermajority instead of a simple majority in order to protect robust debate, but in actuality, it lets the minority party crush debate into dust.

The procedural filibuster is not a stroke of genius cooked up by the framers of the constitution to boost democracy. It is a nasty side effect of a 20th-century rule meant to limit filibustering. How is it a filibuster if I can’t watch it for hours on C-Span? The procedural filibuster is nothing more than the tyranny of the minority, and it’s time for Mitch McConnell and Republicans to return the Senate to the majority-rules body that the framers intended it to be.

Eddie Zipperer is assistant professor of political science at Georgia Military College and a regular LifeZette contributor.

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