Many conservatives have responded to the election returns by saying, “It’s a good thing that the Gang of 14 preserved the filibuster. Now that we are in the minority, the senate filibuster might be the only thing preventing national health care, Union card check, higher taxes and ultra-left judges on the federal courts.” But this represents, for the most part, a misunderstanding of both the history of the senate filibuster and the current senate rules that make filibusters possible by a minority of US Senators.
Let’s take the issue of tax increases first. Some conservatives think that the Republicans will be able to filibuster proposed tax increases by the Democrats.
This is mostly wrong because of the 1974 Budget Act, which limits debate on budget reconciliation bills to 50 hours of debate. Here’s a Harvard law review of the senate filibuster rule
A third method to curtail debate is found in certain rulemaking statutes. The 1974 Budget Act, for example, includes procedures that operate akin to a unanimous consent agreement to limit debate on matters specified by the Budget Act.
In 1993 the Senate Democrats passed the Clinton tax increase by a single vote, the tie-breaking vote of Vice President Al Gore. This is because the tax increase was part of the 1993 budget reconciliation bill and could not be filibustered by a minority of the US Senate.
Usually when someone says, “Let’s filibuster that legislation,” they mean that those opposed to the legislation are in the minority, so that they can not defeat the legislation outright. But they can “talk the legislation to death” by refusing to allow the legislation to come to a vote.
This is because Rule Twenty Two of the US Senate requires that three-fifths of all Senators chosen and sworn must support an end to debate (known in the Senate as cloture) in order for a piece of legislation or an executive nomination to be voted on.
“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
It’s important to point out that Senate Rule Twenty Two is not part of the US Constitution. It is only a Senate rule. And Senate rules can be changed or ignored.
First, let’s discuss how the Senate can ignore its own rules by majority vote.
Let’s imagine a situation where the Democrats are trying to pass legislation not part of a budget reconciliation bill, a piece of legislation that can theoretically be filibustered by the Republican minority. If the Democrat Majority really wants to pass the legislation they could use what is known as the Byrd option.
The Democrats would notice that cloture votes repeatedly recieve less than 60 votes because none of the 42 Republican US Senators are willing to support cloture. Senate Majority Leader Harry Reid could say to the presiding officer of the Senate (which according to the US Constitution could be Vice President Joe Biden), “I move that we vote on this legislation.” Vice President Joe Biden could say, “The clerk will call the role.”
At that point we would expect Minority Leader Mitch McConnell to make a point of order that Rule Twenty Two precludes a vote on the legislation being debated. Senator Harry Reid could make a “motion to table” McConnell’s point of order, which would force an immediate vote on Reid’s tabling motion. If the Democrats vote with Senator Reid on their tabling motion, a vote would be held on the legislation, even though fewer than 60 Senators and 0 Republican Senators supported allowing the legislation be voted on.
Second, let’s discuss how the Senate can overtly change the filibuster rule.
They could change it to allow cloture (an end to debate and commencement of voting) to be invoked when 51 Senators support cloture instead of the current 60 vote requirement. Rule five of the US Senate requires that 2/3rds of all Senators support an end to debate on rule changes. However, the Democrats could use the Byrd option to obtain a vote on a rule change without obtaining the 2/3rds requirement.
With a 51 vote requirement replacing the 60 vote requirement, the Republican minority would be powerless to stop legislation without persuading several Democrats to support their position.
Even if the Senate filibuster rule, as it currently stands, is maintained, it disadvantages the Republicans in the long run. This is because the media puts the spotlight on Republican filibusters but barely covers Democrat filibusters. This is why Republican filibusters often result in Republicans backing down and allowing the Democrat majority to vote while Democrats filibuster until they are in the majority.
This is what happened when President Bush and the Senate Republican Majority tried to put conservatives on the federal court of appeals. Republicans did not end the filibuster using the Byrd option because they wanted to “fight fair” and be “bi-partisan.”
But now that the tables are turned, it is unlikely that any of Obama’s judicial nominees, no matter how Left-Wing, will be filibustered while the Democrats have the Senate Majority.
The filibuster rule can not save the US from the November 2008 election result. In fact, the filibuster rule enforces a state of affairs where it is heads the liberals win, tails the conservatives lose.