By Royal Alexander
While not a Constitutional requirement, invoking cloture and cutting off legislative debate currently requires the agreement of 60 Senators and it is wise and prudent to retain that requirement
The Framers of our U.S. Constitution, by design, intended for the U.S. Senate to serve as a very different kind of legislative body than the U.S. House of Representatives. They insured this in the Constitution by seeing that U.S. Senators only face reelection every six years—versus every two years in the U.S. House—and by putting in place other traditions to be certain the Senate functioned with collegiality and—compared to the House—as a highly deliberative body with a calmly dispassionate sense of purpose. As we know, the U.S. Senate has famously been described as a “cooling saucer for the hot tea” of the U.S. House to spill onto. A backstop of sorts. Or, as James Madison described it, “a necessary fence” against the fickleness and passion of the U.S. House—the “People’s House.”
We may recall that Senate Democrats eliminated the filibuster for lower court judicial nominees in 2013, when Democrat Senate Majority Leader Harry Reid was in control; Republicans made the same move for Supreme Court nominees in 2017 which led to justices Gorsuch, Kavanaugh and Barrett joining the Supreme Court. However, neither side has moved decisively to eliminate the legislative filibuster.
What eliminating the legislative filibuster essentially means is that the majority party in control of the Senate no longer needs to alter or moderate the bills it introduces in order to attract enough votes from the minority party to reach 60 votes needed to cut off debate and go to a vote on the legislation itself. And, while the legislative filibuster is not required by our Constitution, history has shown that it is not wise or prudent to ram through major changes in our law and in our society based upon the raw political strength of a simple majority. Minority interests and considerations are easily overlooked and damaged that way.
When the Senate moves to pass major legislation like multi, multi-billion-dollar appropriation bills, the national defense authorization bill, farm bill, and huge infrastructure bills like the highway bill, it should have at least 60 Senators wanting to end debate to do so. Without this kind of “buy in” from the minority party a new law is often never fully accepted, and the law’s opponents spend years trying to repeal or undermine it.
Please recall the Obamacare law that passed the U.S. House and U.S. Senate on a strictly partisan, party-line vote and was signed by Pres. Obama. Republicans, who never had any input in the crafting of that major and far-reaching piece of legislation, have now spent years trying to repeal it and have it declared unconstitutional.
Yes, the 60-vote filibuster rule for legislation can be highly frustrating at times and yes it seems far preferable for a simple majority to be all that is necessary to cut off debate when the party we favor controls the Senate. But, what about when the party we favor does not control the Senate? If the legislative filibuster and 60 vote-requirement is abandoned all that will be necessary to cut off debate and vote to impose harsh and draconian laws like, for example, massive new taxes, the Green New Deal, mandatory unionization of states that favor right-to-work, and adding Puerto Rico and Washington, D.C. as two new states with many new liberal members of Congress—are the votes of a simple majority.
Again, the Senate is supposed to be a fundamentally and structurally different kind of legislative body than the U.S. House—which most often does operate based upon the will of pure majorities—and it should remain that way. Legislation—particularly bills bringing about major changes—is supposed to be difficult to pass and require consensus and that should continue in the Senate.