Senate procedure is complex enough that talking about it often trips up even senators who have been around for several years.
Reporters writing about the so-called “filibuster” often look to past reporting to get their bearings, perpetuating a conventional wisdom that is false or very misleading.
It is common to refer to the cloture motion as the “Senate filibuster.” I’m guilty of doing that as a sort of shorthand, but I ought not.
According to the nonpartisan Congressional Research Service, “filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote.”
The cloture motion is not the same thing as a filibuster, as CRS will also confirm.
The cloture motion requires 60 votes to bring consideration of legislation to finality.
That means not just debate, but, crucially, the amendment process.
That’s worth repeating. The effect of invoking cloture is to say that the Senate has considered the bill enough, meaning a sufficient number of amendments have been considered that the Senate has had a chance to work its collective will.
The Senate was designed by the constitutional framers to be the more deliberative body.
In the House, a narrow majority can pass hastily drafted, poorly conceived legislation.
As political parties have become more ideologically polarized, power to shape legislation has accrued to House leadership.
Individual members of the House of Representatives have essentially no opportunity to get a vote on bills or amendments unless blessed by the Speaker.
The House Rules Committee, filled with partisans loyal to the Speaker, will draft a special rule for considering a bill detailing the amendments, if any, allowed to be offered.
Members of the majority party in the House are expected to vote for their party’s rule no matter what.
The Senate is supposed to be different.
It’s the “cooling saucer” making sure each provision in legislation is thought through.
We also make sure that bills work for most states, not just the more populous states on the east and west coast that dominate the House.
Each and every senator represents a whole state and each senator has an equal right to participate in the legislative process on behalf of their state.
Senators who would abdicate that right are doing a disservice to the state and the people they represent.
In the 2008 election, Democrats gained a 60 vote supermajority in the Senate with a Democrat House and President Obama.
As such, the Senate acted like the House.
The usual deliberative process with bipartisan negotiations and careful refining and tweaking by committees went out the window.
Major legislation was drafted in the Senate Democrat leader’s office, often bypassing Senate committees. Democrats would then dutifully invoke cloture, often with no Senate floor amendment process at all.
I was astounded at the time that Democrat senators would routinely vote to cut off the amendment process before it had begun.
Surely they had amendments important to their states that they would have liked to offer.
But, voting for cloture was expected of Democrats–just like the rule in the House–even if it meant giving up their right to offer amendments, thus abdicating their responsibility to represent their home states.
That situation became the norm, even when the Democrats lost their short-lived 60 vote supermajority.
Most senators now serving, only know the Senate since this break with Senate tradition.
Despite some improvement in recent years, the culture of the Senate has not recovered.
When people say the Senate is broken, the problem is not the one Senate rule keeping it from becoming just like the House.
The problem is people who expect the Senate to act just like the House when the Senate is actually intended to be a check on the House.
Since the most significant effect of blowing up the 60 vote cloture rule would be to deny the right of all senators to offer amendments on the Senate floor, why do people talk about some return to the mythical talking filibuster?
That comes out of confusion over the word “filibuster” I mentioned at the start.
The Senate rules state that, in most cases during debate on a bill, a senator may speak for as long as that senator holds the floor.
That’s the rule Jimmy Stewart’s character took advantage of to delay consideration of a corrupt bill in the classic movie, Mr. Smith Goes to Washington.
That meets the definition of a filibuster, but it has nothing to do with the cloture rule.
Those who would argue that senators ought to have to speak nonstop on the Senate floor until they collapse just to preserve their right to offer an amendment on behalf of their state are either confused or being dishonest.
During the Trump administration, reporters routinely sprinkled the word “falsely” into descriptions of things President Trump said as a sort of running fact check.
Reporters ought to revive the practice of using the word “falsely” when President Biden and other Democrats make demonstrably false statements. This issue would be a good place to start.
Any reference to some non-existent, totally mythical age of the “talking filibuster” ought to have a disclaimer that no such requirement ever existed for the 60 vote cloture rule.
As I mentioned, conventional wisdom about the filibuster has been distorted by confusion, and perhaps intentional shell games.
For senators or reporters wishing to truly understand this issue, I urge you to consult the nonpartisan Congressional Research Service as your main source.
