Ilona Nickels
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Ilona's Blog: March 2021

Talking Filibuster Fallacies by Ilona Nickels

The current raging debate over the need
to reform or get rid of the filibuster lacks clarity.

Three truths need to be acknowledged
if anyone seeks to understand the issue
rather than to grandstand it.

First, both parties have consistently used the filibuster over the years when it suited them. No one has a lock on using or abusing the filibuster. You could create an OED-size tome of hypocrisy by aggregating all the speeches defending the filibuster by Senators who now proclaim it to be an impediment to conducting the people's business.

Second, the majority party in the Senate will at some point become the minority party. It is inevitable.

The third truth flows from the second. Whatever is done now to the filibuster for short-term gain of control over the legislative agenda will, in the future, damage the party inflicting the change. Guaranteed.

The practice of using the filibuster for less-than-monumental issues and doing so in a casual manner can be directly attributed to Senator Robert C. Byrd (D-WV) when he served as the Majority Whip to then Senate Majority Leader Mike Mansfield (D-MT) in the 1970's. Touting the need for more efficiency in the Senate, Byrd designed what was then called the "two-track" system. When a filibuster occurred, the majority leadership would negotiate with the filibustering Senator(s) about ending debate and bringing to a vote the bill in question. That occurred on track one.

On track two, other bills cleared for debate would occupy the time on the Senate floor. The filibustering Senator(s) received the leadership's assurance that should the Senate turn back to the legislative stalemate on track one, that Senator would retain his/her full right to the floor, as if the Senate had never moved on to other business.

It was seen as a sweet deal at the time. The Senate wasn't stuck on one issue but could move on to get other things done; if the dispute on track one could not be resolved, the issue died. If an agreement was reached, the Senate would turn back to the issue, debate, amend, and vote on it per the agreement reached. The filibustering Senator(s) got the desired delay on the issue at hand and didn't have to work very hard to get it – no dehydration or catheters needed.

What Byrd and proponents of the two-track system could not foresee is that because it made filibusters so much easier to mount, it would encourage a substantial increase in their use. Say a few words on the floor, signal that you intend to filibuster, and you were offered the two-track deal. Not surprisingly, Senators of both parties began to use the filibuster more frequently and on a spectrum of issues, not just once-in-a-lifetime career-defining legislation, as before.

Another unacknowledged fact is that no rules change is required to transform the current "invisible" filibuster into an active "talking" filibuster. It only requires a change in floor scheduling, which is in the sole control of the Majority Leader. Were he to keep the Senate in continual session, allowing no recess or adjournment or intervening motions to move to other business, the filibustering Senator(s) would have no choice but to keep standing and talking on the floor.  If they stop talking or leave the floor, they cease to hold the floor. The Presiding Officer can then recognize the Majority Leader who would move on to other business.

The final fact may be the most consequential one. No attempt to amend Senate rules to change how the filibuster is conducted would succeed. No chance. It takes a 2/3 vote to change the Senate rules. In a 50-50 Senate, that is an impossible threshold to reach. When the majority party has the barest of margins to control the Senate floor, attempting such a change is an overly ambitious and short-sighted quest.

A filibuster in practice goes back to the original intent behind the concept of giving Senators the right to unlimited speech: it was and is to force negotiation and compromise in order to achieve progress. That is never easy when opinions are dramatically divided. The filibuster is the Senate's tool to try and make it happen.


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