Last week, an American political institution, aged 100, was placed on its deathbed. Its expected passing was mostly overlooked and unlamented.
It was “filibuster,” the evil twin of the less well-known “cloture,” who survives. Cloture is a vote to end debate and allow a final vote on a bill in the U.S. Senate. It was born in 1917 to allow a vote on a World War I issue.
With cloture, filibuster immediately arrived to prevent final votes. At first, it required endless debate. Eventually, the filibuster would allow debate to be ended only by a supermajority of 60 senators, not the Constitution’s simple majority of 51 senators. Only 41 senators could kill a bill.
Cloture has become a political battlefield. A minority of senators can control the Senate with just enough votes to kill a bill. It’s difficult to get the 60-vote supermajority.
In recent years, the Senate has been reverting to the simple majority. The supermajority is no longer used for major laws and for approving judges, even for the Supreme Court, or top executive branch officials.
To pass the Affordable Care Act, the Democrats developed a way to avoid the filibuster by linking their proposal to a prior bill on taxes and the budget. This year, the Republicans tried to use the same method to repeal the ACA.
In effect, both parties agree the filibuster is a bad idea. At least they do when they are in the majority. When in the Senate minority, their view flips.
With the GOP controlling both Congress and the presidency, they want to prevent the Senate Democratic minority from blocking their major legislation. President Trump encouraged the end of the filibuster.
Last week was the clincher. Senate Republicans voted for what they knew was an impossible budget, just to create a future link for tax legislation, thus avoiding a filibuster. House Republicans had adopted a different budget bill, but this week accepted the Senate version temporarily, to eliminate the chance of a filibuster of the tax bill.
With the simple majority now applying to so much of Senate action, the deathwatch for the filibuster began last week. Any presidential nomination and any major bill that can be made to have something to do with the budget – almost anything works – cannot be filibustered. It will fade, while remaining on political life support, in case of emergency need.
At first look, the end of the filibuster seems to be in line with majority rule, one of the basic elements of democracy. That’s correct, as far as it goes, but it doesn’t go far enough.
Even without the 60 votes required for passing a bill or approving a nominee, the Senate will still often be controlled by a minority. The 52 GOP senators in the current majority represent less than half of the American population.
It is at least possible that a Senate majority of 51 votes could come from senators representing less than 18 per cent of the total population. That’s true minority rule, which will survive the end of the filibuster.
Perhaps those 51 senators will never unite on a vote. But the likelihood is that, even now, laws are being adopted by senators representing much less than a majority of Americans. The filibuster only made it worse, because a blocking minority could represent a tiny portion of citizens.
The bad news may be that the filibuster, a vote on allowing a final vote on the bill itself, does not violate the Constitution, which authorizes the Senate to make its own rules of procedure. The good news is that a new voting procedure could be adopted in exactly the same way under the Senate rules.
Assume the Senate sticks to the simple majority rule described in the Constitution with no special ability for a minority of senators to block the passage of legislation. How can the U.S. prevent the underlying minority rule?
The Senate could adopt a so-called “qualified” majority rule. Passing a bill or approving a nominee would require the support of not only a majority of senators, as is the case today, but also that they must represent a majority of the population. The result would be a decision made by a true majority.
Each state would retain its two senators with equal voting power. But the need for an underlying majority of the people almost certainly would force more bipartisan cooperation. Today, for example, the only path to a qualified majority would require support from both Republicans and Democrats.
The filibuster fades. It’s time for true majority rule.