On July 29, 2017, Trump tweeted: “Republican Senate must get rid of 60 vote NOW! It is killing the R Party, allows 8 Dems to control the country. 200 Bills sit in Senate. A JOKE!”
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Jamestown was established over 400 years ago. The Thirteen Colonies declared independence 246 years ago and the U.S. Constitution was ratified 233 years ago. The Filibuster Rule? Not in the Constitution, and not written by the Founding Fathers. The filibuster rule is just 150-years-old. It was created arbitrarily in 1872 when Vice President Schuyler Colfax (R-NY), as President of the U.S. Senate, ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending issue.”
Since that time, the filibuster has evolved from a form of courtesy and a rare procedural tactic to a governing norm. Originally, the concept was about civility and respect of political minorities while maintaining the rights of the majority. However, Southerners of both parties used the process to slow passage of the civil rights legislation; Senate Republicans used it to defeat President Lyndon Johnson’s nomination of Abe Fortas to the U.S. Supreme Court; and in President Bill Clinton’s first term, the filibuster was used to slow the passage of the gun-control legislation (Keefe, 2005). The rule has continuously evolved from an original intent of courtesy to a tool of minority tyranny, most often top stall social progressivism such as the Civil Rights Act (NCC Staff, 2016) and the John Lewis Voting Rights Advancement Act. Those who espouse Originalism as a Constitutional philosophy ought to be against the filibuster as it is neither Constitutionally required nor used as its original intent. Proponents of representative democracy should be against an archaic tactic that undermines the wishes of the electorate as expressed through elections and the basic idea of majority rule.
Senate Majority Leader Mike Mansfield (D-MT) limited the filibuster rule in 1975. In 2005, Senate Majority Leader Bill Frist (R-TN) has said that the rule change would apply only to judicial nominees, but how could he guarantee that after the door has been opened again? It’s not called the “nuclear option” for nothing (Keefe, 2005). Ultimately, Frist did not need to change the rules due to a bipartisan deal (Naylor, 2005).
But the, in 2013, the filibuster rule has been limited again by Senate Majority Leader Harry Reid (D-NV) when Senate Republicans obstructed Obama’s nominations and agenda (Keefe, 2016). On November 21, 2013, the Democratic-controlled Senate voted 52 to 48 to require only a majority vote to end a filibuster of all executive and judicial nominees, with the exception of U.S. Supreme Court nominees.
But then the matter of Supreme Court nominations became the next filibuster battleground and, on February 1, 2017, President Donald Trump called on Senate Majority Leader Mitch McConnell (R-KY) to end the filibuster rule. For months, McConnell had threatened the Democrats not to filibuster or would exercise the “nuclear option” and eliminate the filibuster rule for Supreme Court nominations (Keefe, 2018). Senate Democrats did not blink, and on April 6, 2016, the Republican-led Senate voted 52–48 along party lines to change its long-standing rules to prohibit filibustering against Supreme Court nominees but preserving legislative filibusters.
Four days later, Neil Gorsuch was confirmed as the 101st Associate Justice of the Supreme Court of the United States.
For McConnell, it was important to maintain the legislative filibuster, so that he could keep the Democrats as a Straw Soldier to further his own posturing, political rhetoric, and potentially his own powers as the Minority Leader after the 2018 Elections (Keefe, 2018). That fear of being in the Senate minority is also the reason behind some current Democratic critics of the Biden-Schumer call for reforming or eliminating the filibuster rule. Those voices are wrong; Constitutionally, ethically, historically, and morally… they are wrong.
U.S. President Trump has called for the ending of the filibuster. On January 11, 2022, President Joe Biden, a longtime defender of the filibuster rule said its time for it to go (Rogers, 2022). His predecessor, President Barrack Obama’s position has evolved as well since his experiences as a U.S. Senator and the leader of the Executive Branch (Stabile, 2022). In a recent Op-Ed, he wrote that the filibuster must go (Obama, 2022).
Calls to end the filibuster are not partisan, it is a defense of democracy as well as a rejection of the abuse of power. The results of elects should not be thwarted with archaic tools of self-aggrandizement and the protectionism of tyranny by the minority -regardless of party.
Elving, R. (2013). “‘Nuclear Option’ Vote Marks Tectonic Shift In Senate Rules.” NPR: All Things Considered. November 21, 2013. https://www.npr.org/sections/itsallpolitics/2013/11/21/246597699/nuclear-option-vote-marks-tectonic-shift-in-senate-rules
Keefe, T.E. (2005). “On the Filibuster Rule.” The Warwick Beacon. Op-ed. May 5, 2005.
Keefe, T.E. (2016). “On Trump’s Nominations for his Administration.” Blog post. January 18, 2016.
Keefe, T.E. (2018). “On the 2018 Shutdown and Mitch McConnell.” Blog post. January 20, 2018.
Naylor, B. (2005). “Filibuster Deal Seen as a Mixed Blessing for Frist.” NPR: Morning Edition. May 25, 2005. https://www.npr.org/templates/story/story.php?storyId=4665915
NCC Staff. (2016). “The filibuster that almost killed the Civil Rights Act.” Constitution Daily: The National Constitution Center. April 11, 2011. http://constitutioncenter.org/blog/the-filibuster-that-almost-killed-the-civil-rights-act
Obama, B.H. (2022). “We need to follow John Lewis’ example and fight for our democracy.” USA Today. January 12, 2022. https://www.usatoday.com/story/opinion/2022/01/12/obama-senate-democrats-must-protect-democracy-majority-vote/9185565002/
Rogers, K. (2022). “‘We have no option’: Biden calls for changing Senate rules to pass voting rights laws.” New York Times. January 11, 2022. https://www.nytimes.com/2022/01/11/us/politics/biden-filibuster-voting-rights.html
Stabile, A. (2022). Obama about-faces on filibuster to push election bills, gives full support to Biden to ‘modify Senate rules.’” FoxNews. January 12, 2022. https://www.foxnews.com/media/obama-about-faces-on-filibuster-biden-senate
