This editorial was written by the Sun Sentinel Editorial Board of the South Florida Sun Sentinel.
In popular imagination, the Senate filibuster is the heroic adventure portrayed in the 1939 film classic, “Mr. Smith Goes to Washington.” An idealistic young senator played by Jimmy Stewart holds the floor until he collapses from exhaustion, fighting to prevent bad things from happening.
In real life, the filibuster most often prevents good things from happening. Southern senators used it for decades to choke anti-lynching bills and other civil rights legislation. Now, the mere threat of a filibuster is enough to keep the Senate from even debating, let alone passing, the $15 an hour federal minimum wage that most Americans say they favor and the House has approved.
Whether the Republicans would permit any increase is in doubt. Why compromise when you can kill a bill simply by refusing to let the Senate hear it?
Mitch McConnell, the implacable Republican leader, is a sure bet to also use the filibuster against the forthcoming House bill that would protect voting rights from a concerted rollback campaign in Republican legislatures, including Florida’s.
He’d be well advised, though, to consider whether he might be provoking the Democrats into abolishing the filibuster altogether.
The filibuster is as archaic and outdated as the snuff boxes and spittoons that are kept on hand, unused, in deference to Senate traditions.
But at least the snuff boxes and spittoons are innocuous now. The filibuster is not. The Senate should be rid of it.
The federal minimum wage has been stuck at a pathetically low $7.25 per hour since 2009. It was inadequate even then but would be worth $8.84 today, still inadequate, had it kept up with inflation.
Two-thirds of Americans favor raising it in stages to $15 an hour, according to a pre-election poll. On Nov. 3, 61% of Florida voters approved raising the state minimum over time to $15.
But the filibuster is a firewall against public opinion.
The great constitutional compromise of 1787 gave every state two senators regardless of its size in a trade-off for proportional representation in the House of Representatives. Today, that means the smaller states have a permanent majority in the Senate. Enough of them are conservative and Republican so as to assure that in the near term, at least, there will always be 41 votes to block any legislation the Republicans oppose.
According to a December 2019 study by Data for Progress, a liberal think tank, the Senate is institutionally biased 3 percentage points in favor of the GOP and seriously underrepresents nonwhites. It most overrepresents whites without college educations.
This is of concern because bipartisan cooperation is unachievable in a situation where one party can use the rules to let the other accomplish nothing.
You can search the Constitution in vain for any provision requiring more than a majority vote to do anything other than ratify treaties, override presidential vetoes, convict an impeached officer and propose amendments to the states. What you will find in the Constitution is a prohibition on any amendment that would deprive any state of “its equal suffrage in the Senate.”
On top of that, there is the filibuster.
The filibuster has been in the obstructionists’ arsenal since 1806, when the Senate repealed a little-used rule allowing a simple majority to “call the previous question” and proceed to a vote on the matter under debate. In 2017, the Senate agreed to allow two-thirds of its members to shut off debate with a motion known as cloture, and in 1975, the threshold was lowered to three-fifths, meaning 60 votes.
Originally, the filibuster was used to prolong debate and prevent a final vote. Now, it is most often used to prevent debate from beginning. Senate leaders generally won’t call up a bill if they know there are at least 41 votes against even hearing it.
The rules now allow a simple majority vote to confirm judges, Cabinet officers, ambassadors and other executive branch officers and, within limits, to pass any budget-related legislation. Given how partisan the Congress has become, those changes unquestionably have averted total gridlock. But they can only be stretched so far. The Senate’s parliamentarian, an appointed nonpartisan official, has ruled that the minimum wage increase isn’t appropriate for the budget reconciliation process.
There are other ways the Democrats could wield their narrow majority. With Vice President Kamala Harris in the chair, they could establish a precedent that a filibuster requires the actual continuing presence of all senators rather than merely the threat that 41 of them would show up just long enough to vote against cloture. They could also bar the use of a filibuster against a motion to take up a bill.
Or they could get rid of the filibuster altogether.
In 2013, the Democrats employed a series of simple majority votes to change the rules and eliminate filibusters against executive branch appointments and federal judges other than the Supreme Court. The procedure was so controversial that it was nicknamed the nuclear option. McConnell, whose Republicans were filibustering several nominees at the time, warned that the Democrats would regret it. In 2017, he paid them back by invoking the option to confirm Supreme Court justices without a filibuster. Now that he’s in the minority again, McConnell loves the filibuster.
It’s not at all clear that all 50 Democrats would vote at present to eliminate the filibuster altogether. But McConnell can’t be certain of holding that advantage if he continues to prevent the consideration of legislation as essential to the Democratic Party’s agenda — and to the nation — as election reform and the minimum wage increase. To save the filibuster, the Republican leader would be well advised to use it less and let the Democrats have the debates that the nation deserves to hear.
This much is clear: the filibuster itself is a nuclear option in this age of intensified partisanship. It can be a deadly obstacle to bipartisan compromise, as President Obama learned in 2010 when none of his concessions earned a single Republican vote for the Affordable Care Act, and he had to resort to budget reconciliation to enact it.
The filibuster needs to go.
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