The topic of today’s episode is “What is the filibuster?” And does it have a future? My guest is Dr. Molly Reynolds, who is a Senior Fellow in Governance Studies at the Brookings Institution. She studies Congress, with a focus on how congressional rules and procedures affect domestic policy outcomes. She also supervises the maintenance of the “Vital Statistics on Congress,” Brookings’ long running resource on the first branch of government. Importantly, for our episode today, Molly is the author of the book Exceptions to the Rule: the Politics of Filibuster Limitations in the US Senate.
Kevin:
Molly, welcome to the program.
Dr. Molly Reynolds:
Thanks for having me, Kevin. It’s great to be here
Kevin:
For some years, there has been mounting criticism of the filibuster. Before we get into those criticisms, let’s first get clear. What exactly is a filibuster? Is it a rule in the Senate or what? And what Senate activities can be filibustered?
Dr. Molly Reynolds:
Sure. The filibuster, or as I would describe it, the ability to prevent something from coming up for a final vote in the Senate, is not itself a Senate rule, but it’s a consequence of the Senate’s rules and precedents. It’s important to note, I think, that the filibuster was not part of the founder’s original vision of the Senate. Its emergence was made possible in 1806 when the Senate, at the advice of Vice President Aaron Burr, removed from the rule book that it had at the time, a provision that’s formally known as the Previous Question Motion, that allowed for a simple majority to force a vote on the underlying question being debated in the Senate.
Dr. Molly Reynolds:
When the Senate did this in 1806, it wasn’t a strategic or political decision. It was really a housekeeping matter. It was that Burr was looking at the rule book, finding things the Senate wasn’t really using and suggesting that a legislature of the caliber that the US Senate considered itself needed a cleaner and more streamlined rule book. The Senate wasn’t using the Previous Question Motion all that often and had other motions available at the time that did the same thing.
Dr. Molly Reynolds:
So they take the previous question motion out of the Senate rules. Without it, there’s no way for a simple majority to cut off debate and move to final passage. Then over the course of the 19th century, we saw senators start to engage in more filibustering. We also saw Senators try to ban the filibuster, trying to crack down on this obstruction, but they were obviously unsuccessful.
Dr. Molly Reynolds:
Then in 1917, as part of a debate over a proposal to arm American merchant ships, as the US prepared to enter World War I, the Senate adopted its first version of what we call the cloture rule, which is in the Senate book, in Rule 22, which is what allows the Senate now, with three fifths of the Senate, to cut off debate.
Dr. Molly Reynolds:
When the Senate first did this in 1917, it was two thirds of all senators. That threshold again has moved around a little bit over time. Since 1975, it’s been set at 3/5, or 60 votes, if the Senate’s at full strength. So now, for many measures in the Senate, debate can only be cut off if at least 60 Senator support doing so.
Dr. Molly Reynolds:
There are some exceptions to this. We can talk about those, nominations to executive branch positions and to the federal judiciary, then certain legislation for which Congress has previously decided to place a limit on debate. The effect of placing a limit on debate, and when I say a limit, I mean some number of hours. A bill, a specifically designated bill, can be debated for 20 hours, 50 hours, what have you. Those limits on debate have the effect of eliminating the need to get to 60 rather than having to have a vote to cut off debate. Debate simply ends when that amount of time is consumed and thus the building a super majority isn’t necessary.
Kevin:
Gotcha. All right. For those who know about the filibuster, what often comes to mind is the film. Mr. Smith Goes to Washington, where an earnest Senator stands on the floor of the Senate and speaks for hours, decrying a corrupt effort to fleece the public by some of his colleagues. His effort is an effort to draw public attention to a perceived misdeed and to block the legislation from enactment. Today, do we get filibusters like that very often? Do people hold the floor and just prattle on for hours and hours and hours until the other side gives in?
Dr. Molly Reynolds:
We don’t often see that anymore. I like to, and others, refer to that kind of behavior from the current Senate as extended speechifying. We do see it occasionally. A relatively recent example is in 2016 when Senator Chris Murphy of Connecticut, along with a couple of other Democratic Senators, held the floor for quite a long time in an attempt to get the Republican leadership to make some concessions to them around votes on gun control legislation. But generally, in the current Senate, the filibuster functions implicitly rather than explicitly in kind of the Mr. Smith Goes to Washington, someone is speaking, reading from the phone book, what have you, for a long time on the Senate floor. We just don’t see that as much anymore.
Kevin:
It’s the case that senators are just not taking the floor on a regular basis and thwarting bills with endless speeches. Why has there’s been so much criticism of the filibuster? One often hears people say that the filibuster is causing massive gridlock and all sorts of very popular measures are just not moving forward because they’re being filibustered. Are they just using the wrong term or is something else going on?
Dr. Molly Reynolds:
Some of it is that we’ve had some slippage in what we mean when we say the filibuster, but generally I think the criticism comes from the fact that as I was saying before, the filibuster is now used implicitly as a threat. That’s meant that the norm, that 60 votes are needed to do most things in the Senate, has really infused deeply into the culture of the Senate and how the two parties interact with each other and how they negotiate over legislation. We see, for example, that even when the Senate doesn’t go through the formal steps of invoking cloture, which involves filing a cloture motion and then some intervening time and then a vote on the cloture motion. If that gets the 60 votes, then there’s some more time. Then there’s a vote on final passage. That can take up a lot of time in the Senate.
Dr. Molly Reynolds:
We now see that even when the Senate, when the parties negotiate with one another to avoid all those formal hurdles, we still see the 60 vote threshold baked into a lot of those outcomes of negotiations. It doesn’t consider that many amendments on the floor anymore, for example. But when it does, they often come to the floor with the stipulation, from both sides, that both sides have agreed on, that they’ll come to the floor and that they’ll need 60 votes to be considered adopted and incorporated into whatever bill is being amended at that moment. We’ve really gotten to this point where even if it isn’t extended speechifying, that the threat of not supporting a cloture motion and then other follow on effects from that have built this 60-vote culture in the Senate.
Kevin:
Well, as we both know, the ability of a Senator to filibuster nominees has eroded in recent years. Let me first ask, how does the Senate go about reducing the realm of activities that can be filibustered, by this thing can be, and that thing can’t be?
Dr. Molly Reynolds:
There are three basic approaches to changing the rules around the filibuster in the Senate. The first one, which I will say just for completeness and not necessarily because I expect us to see this at any point in the near future, is an actual formal change to Rule 22 of the standing rules of the Senate, the Senate’s actual published rule book. In Rule 22, it stipulates that to invoke cloture, to cut off debate, you need three fifths. The Senate could, if it wanted to, consider a measure that makes a change to that formal rule in the Senate’s rule book.
Dr. Molly Reynolds:
The catch there is that to cut off debate on a proposal to change the rules, you actually need more than three fifths. You need two thirds. It’s really hard, basically, to get a super majority in place that’s willing to make a change to the Senate’s formal rules. The number of votes you need to end debate on that kind of proposal is quite high. Just putting that out there now for the sake of completeness.
Dr. Molly Reynolds:
But the other two that we’ve seen the filibuster be altered are a little more plausible. The first one of these involves changes to the Senate’s precedents. I mentioned the Senate’s formal rule book. Sitting alongside the formal rule book are what we refer to as Senate precedents. These provide additional insight into how and when the rules in the rule book have been applied in particular situations. The important thing to note in this context is that a new precedent can be created with fewer votes, the support of fewer senators than a new rule. A new precedent can basically be created by a Senator coming to the floor, raising a point of order, basically claiming that some Senate rule is being violated. If the presiding officer, typically a member of the Senate, can be the Vice President agrees, then the ruling from the Chair establishes a new precedent.
Dr. Molly Reynolds:
If the presiding officer disagrees, another Senator could appeal that ruling. If a majority of the Senate, that’s the key part here, a majority, votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the precedent. I think we’re going to talk in a little bit about some recent times when we saw this happen, this reform by ruling or the nuclear option, as it’s often referred to. But that’s the second way that we can make changes to the filibuster.
Dr. Molly Reynolds:
Then the third way is what I mentioned earlier, which is that sometimes Congress, in specific laws that it writes, provides for limitations on debate for specific pieces of legislation. I think we might talk a little bit about the budget reconciliation process, which allows for changes to certain elements of the federal budget in a way that can’t be filibustered. We can talk about the Congressional Review Act, which is a way for Congress to roll back regulations promulgated by the executive branch that I expect will be on the agenda in 2021. Those resolutions also can’t be filibustered.
Dr. Molly Reynolds:
Again, this is the result of a previous Congress in the past having written a law that says some future specific piece of legislation has a limitation on how long this legislation can be debated in the Senate for some number of hours, which has the effect of eliminating the need to file a cloture motion, to get to 60 votes, to cut off debate and move to a final passage vote.
Kevin:
Excellent, excellent. I just want to underscore a key point for the listeners, which is that the Senate, it has rules, as Molly explained, but it also has precedents. Those precedents are what really govern the way the place works on a day-to-day basis. They are often the precedents at odds with the plain language of the rules. Now let’s just move on to nominations. We’ve seen some changes in recent years, what types of nominations can be filibustered and which cannot?
Dr. Molly Reynolds:
At this point, all nominations to the judiciary and to executive branch agencies only require a simple majority to end debate. This change happened in two parts. In 2013, the Senate, at that point, Democrats had a majority and led by then Senate Majority Leader Harry Reid decided to use this reform by ruling, nuclear option strategy that I outlined above, to reduce the cloture threshold, to reduce the number of votes needed to end debate on nominations to lower federal courts, to the district courts and the courts of appeals, and to executive branch agencies. They went through this process I just described him in 2013.
Dr. Molly Reynolds:
Then in 2017, after Republicans had taken control of the Senate and at that point, the White House as well, and President Trump had put forward Neil Gorsuch as the nominee to the Supreme Court, the Republicans in 2017 followed those same steps, the same nuclear option protocol reformed by ruling to reduce the number of votes needed to end debate on a Supreme Court nomination.
Kevin:
Gotcha. Arguably these alterations to the way nominations are handled and which can and can’t be filibustered, making fewer of them filibuster-able, if that’s an adjective, fits neatly with your point made earlier, which is that the threat of the filibuster is so frequently deployed that you’re facing this and you want to get something done, the temptation is well, change precedent so that you can get it done, because you can’t build enough members to support you.
Dr. Molly Reynolds:
Yeah. When we think about changes to the filibuster over time, I think that’s the right way to think about them in that when you have a majority in the Senate that has something that it is deeply committed to doing, is in agreement on, and has the votes to change the precedents either in order to reduce the number of votes needed to get something done, that’s when we see change. That’s when we saw change in 2013. It’s when we saw change in 2017. As we look forward to the future and ask questions, because I think we’re going to talk about the future of the filibuster on legislation, that’s the same way to think about it. What is something that a majority in the Senate is sufficiently in agreement on, thinks is sufficiently important to actually make the change to the rules by changing the precedents, and then move forward into a new Senate in the future.
Kevin:
Yeah. Let’s talk about legislation. What types of legislation these days can be filibustered, be it authorizations for new programs or spending bills for said programs or treaties or whatever it may be? What’s the topography look like there?
Dr. Molly Reynolds:
Yeah. In general, most legislation that the Senate considers is subject to the filibuster. It does come to the floor under procedures that mean that to end debate and move to final passage, you need 60 votes to adopt that cloture motion, cutting off debate. There are important exceptions to this, but they are pretty specific. They are, again, provided for in other laws that Congress has passed.
Dr. Molly Reynolds:
A couple that are of interest now and have been of interest over the past several years, I mentioned earlier budget reconciliation, which is provided for in the Congressional Budget Act of 1974. Basically what reconciliation allows for are certain types of budgetary legislation, legislation changing either federal revenues of the tax code or mandatory spending, so entitlement programs like Medicare Medicaid, the Children’s Health Insurance Program, that sort of thing. Changes to those programs can be made through the reconciliation process and thus not subject to a filibuster in the Senate.
Dr. Molly Reynolds:
But there are a lot of limitations on how you can use the reconciliation process. The most notable one is something called the Byrd rule named for Senator Robert Byrd of West Virginia, which really tries to cabin what can be done through this process. It requires that anything done through the reconciliation process be related to the federal budget. It places limits on the deficit implications of things that are being changed through the process. A lot can happen using the reconciliation process is how Republicans passed their tax cut package in 2017. It’s how Republicans tried and failed to repeal the Affordable Care Act in 2017. It’s how Democrats originally adopted parts of the Affordable Care Act in 2010. It’s how Bush cut taxes during his term. There’s major student loan reform in the mid 2000s that happened this way. There’s a lot. It’s a really important legislative tool, but it’s not unlimited.
Dr. Molly Reynolds:
A couple others, I mentioned the Congressional Review Act earlier, which again is a way that Congress can roll back regulations promulgated by the executive branch. There is a certain time window in which Congress can use the Congressional Review Act after a regulation has been finalized and submitted to Congress. Because resolutions under the Congressional Review Act that repeal regulations have to go from Congress to be signed by the President, we’ve only really seen the CRA used, especially successfully at the beginning of a new presidential administration after there’s been a change in party control.
Dr. Molly Reynolds:
For example, what we are going to see in January when there’s a democratic administration and following a Republican administration, I think we could see some activity with the Congressional Review Act. The last specific example that I’ll mention is there’s a provision that allows Congress to overturn the President’s declaration of a national emergency using a legislative vehicle that can’t be filibustered. Again, these then go from Congress to the President for his signature or veto and a President who’s just declared a national emergency isn’t going to sign a piece of legislation from Congress saying, “Oh, wait, we’re going to roll back this national emergency that I just described.” So effectively, if Congress were to really use this check on the President, they would need to have the super majority to override a veto.
Dr. Molly Reynolds:
But again, we’ve seen Congress send a signal, send a message to the President and to the broader country that it does not agree with some of the ways that President Trump has used his emergency power. Actually a number of the vetoes that President Trump actually has issued during his term are of these resolutions considered not subject to a filibuster in the Senate that have gone up to him, disapproving of his declaration of national emergencies, particularly around his efforts to build a wall along the Southwestern border.
Kevin:
If I can just ask a follow-up, one often reads about fast track trade legislation or the process by which military facilities can be eliminated by a quick up or down vote on a whole package of those. Those sorts of fast tracks, are those filibuster-able or not?
Dr. Molly Reynolds:
No. Those are two more examples, the procedures that have been used to ratify trade agreements and the procedures that have been used to close certain sets of military bases also are in this class of procedures that I’m talking about, where Congress, at some point, has passed a law saying that some future legislation can’t be filibustered in the Senate. I literally wrote a whole book on all of these procedures, so we could talk for quite a while on this question and look at lots of different examples. But those, again, are two more beyond some of the ones that I mentioned that we’ve really seen in the headlines in the past couple of years.
Kevin:
Yes. Speaking of that book readers, I remind you that I mentioned it in my introduction of Molly and you’ll also see a link to it beneath the episode. Let me get to my last question. One of the arguments we hear in favor of the filibuster is that it forces compromise and improves law making. Is there much evidence to support that contention these days?
Dr. Molly Reynolds:
It’s certainly the case that the existence of the Senate filibuster requires larger majorities to get things done in Congress, that it means that when Congress is able to act, even in this really polarized era, it does tend to do so on a bipartisan basis. There’s a really nice new book out by Jim Curry and Francis Lee, and a nice recent op-ed that they had in the New York Times on this very point, that one consequence of the Senate filibuster and the supermajority requirement and the Senate is that when Congress does manage to get things done, it tends to be on a bipartisan basis.
Dr. Molly Reynolds:
But I’m not sure I would say that it necessarily improves law making. It certainly, and this is a point that Jim and Francis make in that book, it makes it harder for unified majority. When the same party controls the House, the Senate and the White House, but doesn’t have 60 votes in the Senate, doesn’t have 60 Senators from its party. That’s really unusual in the modern era of narrow Senate majorities to have that many votes. It makes it harder for those unified majority’s to deliver on campaign promises. It sets a lot of folks who sent that party to Washington up for disappointment.
Dr. Molly Reynolds:
I was talking before about the reconciliation process, because that is probably the most expansive exception to the filibuster, the exception through which the most different things can get done. The filibuster in the contemporary Senate forces a lot of legislating into the reconciliation process, which it really wasn’t meant to do. That wasn’t what the process was designed for when Congress wrote the Budget Act in 1974. Because of things like the Byrd rule and the other rules of the process, you end up with really kludgy policy solutions. You end up with less … sloppier laws or laws that if you sat down and came up with your ideal way to achieve a policy objective, you can’t do that through reconciliation, but you can take a little bit here and take a little bit there and squeeze things into the box that reconciliation creates. You might still be able to get something done, but it can be really kludgy. But it’s not the ideal way to do so.
Dr. Molly Reynolds:
Then the third thing that I’ll say about the filibuster and the contemporary Congress is that I think right now we’re looking at a moment where there’s an imbalance between the legislative priorities of the two parties and what can get done in the presence of the filibuster and what can’t. If we think about Republicans and among some of their major policy priorities in the Senate are cutting taxes and confirming federal judges, which has certainly been towards the top of the Republican policy agenda in recent years. Those two things can be accomplished without the threat of a filibuster in the Senate. You can do tax cuts through reconciliation. You can confirm judges under these reduced cloture thresholds.
Dr. Molly Reynolds:
But for Democrats, many more of Democratic policy priorities do run up against the filibuster. That creates this imbalance between the two parties on what they’re able to deliver to their voters based on the rules and precedents of the Senate. I think as we look forward into the next decade, two decades of American public policy making, we’re going to have to grapple with this imbalance and what it means for how the two parties work together and how they can, like I said, achieve what they are telling Americans they believe in and the kinds of policies that Americans are voting for when they send them to Washington.
Kevin:
What you just said there underscores one of the really big, but fundamental points: legislative process matter. It affects the policy outputs and it affects the politics and it affects so much. Molly, thank you for being on the program and helping us understand the filibuster and its place in the Senate.
Dr. Molly Reynolds:
My pleasure. Thanks for having me.
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