One of our local columnists brought up the topic of the filibuster this morning.
"With just 15 days to go until early voting begins in Arizona, Democrat Mark Kelly is still bobbing and weaving when it comes to what may be one of the most important issues of the campaign.
Where, sir, do you stand on ending the filibuster?
It seems only fair that voters know whether Kelly is in favor of dramatically changing the Senate rules. Whether he would support clearing the way for Democrats to pretty much do whatever they want should they win the Senate and White House in November.
For those who don’t closely follow this stuff, this isn’t the Mr. Smith Goes to Washington maneuver, nobly immortalized in the movies.
Basically, it’s a procedural Senate rule that requires 60 votes, rather than a simple majority, to pass most legislation.
Depending on your point of view, it’s either a check in the system that prevents the majority party from running roughshod over the minority party without any attempt to achieve bipartisan cooperation.
Or it’s brick wall erected by the minority to obstruct the will of the majority.
It was used in the 1950s and early 1960s by a bloc of mostly southern Democrats to block civil rights legislation. More recently, Republicans used it to obstruct President Barack Obama’s agenda, compromising the design of the Affordable Care Act and eliminating the possibility of passing climate change or immigration reforms.
The Dream Act would have passed in 2010 if not for the filibuster. Three years later, a bipartisan bill requiring background checks for private gun purchases died because only 54 senators would support it.
During Trump's term, Democrats have used the filibuster to ensure Republicans couldn't pass legislation to build a border wall or cut legal immigration. Most recently, they used it to stop a GOP police reform bill, believing it did not go far enough.
Democrats want to end the filibuster
Now, with Democrats potentially poised to take control of both the Senate and the presidency, the party’s left wing is pushing to do away with the filibuster. They’re looking to make it easier to pass a progressive agenda to reform gun and immigration laws, address climate change and usher in Medicare for all – basically, to pass laws they cannot pass unless Republicans are swept out of the way."
On occasion, the filibuster can get pretty silly. In September of 2013, Ted Cruz read "green eggs and ham" on the Senate floor. Cruz read the tale at 8 p.m., about five hours into his speechifying, saying he was doing it for his two daughters for their bedtime while they were watching C-Span, back home in Texas. He explained that while it was one of his favorite stories, he seldom got the chance to read it to his children because they get to pick the stories, and they don’t ask for that one. Cruz also read Bible verses.
The longest filibuster on record was set by Strom Thurmond, who spoke for 24 hours and 18 minutes in August of 1957. Thurmond (who has a black daughter) was opposed to civil rights legislation. In a filibuster, a senator may continue to speak indefinitely to prevent a final vote on the bill. Some read the phone book, cite recipes for fried oysters, or read the Declaration of Independence.
Up until recently, 60 votes were necessary to confirm a Supreme Court justice,
It wasn't just Supreme Court nominees who needed 60 votes – federal judges and cabinet secretaries needed them as well.
But this arrangement had always been profoundly irritating to the party in power, particularly given the political polarization of recent decades. Time and time again, the party in control of the Senate and White House saw their selections for powerful positions filibustered by their opponents in the minority.
Under President George W. Bush, however, Republicans began toying with a way to get around the filibuster: a simple change to the Senate rules, which required just 51 votes, that would allow judicial nominees to pass with a simple majority.
In 2003, the GOP controlled the White House and had the same 51-vote majority in the Senate they have today. But Democrats had begun filibustering a number of Bush's judicial nominees, which Republicans saw as an affront to their agenda.
So Senate Republicans began toying around with an idea they called "the Hulk," a secret plan to remove the 60-vote threshold via a rule change. But it was the former Republican leader, Mississippi Sen. Trent Lott, who reportedly gave it the name that stuck:"the nuclear option."
The Republicans did not have to use the nuclear option in 2003.
Republicans increased their Senate majority in the 2004 elections and the nuclear option was largely taken off the table. However, in 2013, Democrats were in charge of the Senate and White House, and it was the minority Republicans who were filibustering their judicial picks en masse.
So the Democratic Senate Majority Leader, Nevada's Harry Reid, decided to pull the trigger. The nuclear option was implemented for the first time, and the Senate rules were changed so nominees for cabinet posts and federal judgeships could be confirmed with just 51 votes. Republicans cried foul, despite threatening the nuclear option in the past, and Democrats who had been opposed to such a rule change quickly changed their tune. Then-Senate Minority Leader Mitch McConnell said at the time, "You'll regret this, and you may regret this a lot sooner than you think.
Harry Reid did not change the rules for Supreme Court justices, which still required 60 votes for confirmation.
But then the Senate and White House changed hands again. Republicans took the Senate in the 2014 elections and refused to consider President Obama's pick for the Supreme Court vacancy created by the death of Justice Antonin Scalia. GOP Senate Majority Leader Mitch McConnell instead waited for the 2016 election, hoping a Republican would be elected president and nominate Scalia's successor.
McConnell's move was criticized as an unprecedented breach of political norms, but he got his wish when Mr. Trump was elected. Mr. Trump nominated Judge Neil Gorsuch to fill the seat in 2017, but with the GOP possessing only a narrow majority in the Senate, McConnell and his Republicans reached for the nuclear option.
Once again, the parties flipped sides on whether the nuclear option was justified. New York Sen. Chuck Schumer, the Democratic leader, said he regretted that Reid had used the nuclear option in 2013, even though he had backed the move at the time. McConnell, an outspoken opponent of using the nuclear option when he was in the minority, now justified its use by citing what Reid did as precedent.
The Senate rules were changed for Supreme Court nominees, allowing them to be confirmed by a simple majority. The conservative Gorsuch was confirmed days later to the Senate in a 54-to-45 vote.
Susan Collins and Lisa Murkowski have gone on record as saying that they will not vote on a new justice until January, but Mitt Romney just announced that we would vote at this time. If the vote happens before November 3, Trump's nominee will get confirmed. If Mark Kelly gets elected, and takes office before January 20 (which he would be allowed to do), then the confirmation process will get more complicated.
It's obvious that both parties have abused the filibuster, but I don't think that it should be eliminated. However, a time limit should be put on the filibuster (an hour would seem to be appropriate) and penalties should be imposed for silly pranks like reading pages out of a phone book.