In America, the majority doesn’t get absolute power. That’s by design. And while we wanted the minority to have a strong voice, they shouldn’t get veto power, either.

Filibuster Today

The problem is that the current Senate cloture rule — Rule 22 — makes filibusters impossible to overcome without a five-thirds (60-Senator) supermajority. All the requirements are on the party proposing legislation, effectively making it a veto. So long as Republicans vote loyally along party lines, they effectively have a veto over any measure.

The filibuster isn’t some sacred artifact created by the founding fathers. The filibuster is a historical accident created by segregationists. I find it interesting that Republicans’ first use of it this session will support another wave of voter suppression. Republicans present the filibuster as essential to bipartisan lawmaking, but mostly, Senators used the rule to keep Jim Crow laws and now to break Democratic administrations.

Republican Obstruction as Policy

Chockamo just wrote how the Republican party moved from constant obstruction to The New Republican Death Cult. Anything with a capital “D” gets killed. Chockamo explained that dynamic well.

So no, the filibuster doesn’t make better laws. Not so far, anyway. It reduces America back to the ineffective, hapless Articles of Confederation. We already tried government-by-supermajority once; it didn’t last a decade. Can we please stop making that same mistake?

Filibuster Alternatives

I don’t want to eliminate the filibuster altogether. First, that would be disruptive. Second (and more practically), Democrats don’t have fifty votes to change the rules. (They’re close, but Sens. Joe Manchin and Kyrsten Sinema have been quite specific.)

That’s OK. Complete removal wasn’t my first choice, either. Not when we have better options.

Why a Talking Filibuster is a Bad Idea

I know that the thought of Jimmy Stewart’s movie filibuster sounds attractive. (“Make ‘em work for it!”). The problem is that right now, a talking filibuster is wildly unfair. All the hurting happens to the other side.

Here’s how it works. Suppose a Republican Senator starts a filibuster. Again, that only takes one Senator. If you have a second Senator on your side, you can switch off. So, maybe two Senators on the floor at any one time to keep a bill bottled up.

And here’s the nasty part. The Senate is only in session when there’s a quorum. If the speaker calls for a quorum call and there aren’t 51 voting Senators nearby, the session ends for the day. Everyone goes home. That helps the obstructing party. The Senate resumes on the next working day, and the previous speaker, fresh from a good night’s sleep, continues their filibuster. And again, if Senators leave the chamber, there’s the possibility of another quorum call. We’re in gridlock for the foreseeable future. That’s the veto power.

There’s only one way Democrats can stop that nonsense: keep all the Senators on the floor or nearby. With only two Republicans on the floor, Democrats would need every Democratic Senator close enough for a fast quorum call. The Republican speakers still talk, but you only need one or two Senators at a time on the floor, and they can switch off when they get tired. Democrats must keep all fifty Democratic Senators near during the entire filibuster. Imagine a bunch of septuagenarians and octogenarians sleeping on cots for days. It’s physically demanding, and Republican obstructionists can keep it up for days or weeks.

How to Start a Filibuster

This Senate procedure is the weirdest part. The lowest-level staffer can initiate a filibuster with an email.

The Senate leadership regularly sends out a message with the upcoming legislative schedule. To ‘launch’ a filibuster, a Senate staffer — any staffer — replies, saying their boss will filibuster law S-<mumble>. They don’t even need to be a Senator to exercise veto power.

And that’s it. The staffer goes back to fixing the copy machine and getting coffee for the higher-ups. When they receive the email, Senate leaders remove that bill from the schedule. They have no choice. The modern filibuster is such an asymmetrical threat, Senate leadership can’t realistically oppose it.

Does that sound like a functional legislature? Of course not. The Senate broke the cloture rules a century ago. It was an accident. But it gave the minority their veto power, and they’ve blocked every attempt since then to fix it.

I think it’s time to fix this monstrosity. Really.

How to Change the Rules

There are at least a dozen suggestions about rule changes to fix this asymmetrical threat. Here are a few I’ve seen recently:

• Create more exceptions to the filibuster. I think that’s just papering over the problem.
• Change the quorum rules so that the Senate may only consider a quorum call when the chamber is voting on something. That’s how the House works, so this isn’t radical. You’d have a couple of Senators doing their talking filibuster and a couple of Senators from the other side to keep the process honest. People could still talk for days on end, eating up the legislative calendar, so this might not work, but it’s not as one-sided.
• Change the cloture rules so that two-thirds of the Senators present can end the debate. That used to be how the Senate worked. A party could still filibuster, but only by keeping filibustering party members close. It shifts the cost to the obstructing side.
• Change the cloture rules so that the number of votes to close debate slides down over time. It still starts at 60 votes, but over the days, that drops to 57, then 54, and finally 51 votes (a simple majority). I’m not sure about this one. A filibuster would still cost the majority party weeks of their legislature schedule. Since Republicans treasure obstruction at any cost, they may almost welcome this option.
• Instead of needing 60 votes to end the debate, require 40 Senators to continue discussions. Again, that shifts the cost of the filibuster to the obstructing party.

I disagree with many options, but what do I know? I’m just a blogger.

But I’m tired of living under the Articles of Confederation. And we know that Republicans only honor the filibuster when it suits them. When the GOP wanted more partisan nominees on the court, they didn’t hesitate to end the filibuster. Don’t end the filibuster but end the veto power part of the equation.