“In 1805, fresh off the duel where he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the body’s rules by eliminating something called the “previous question motion,” a process that was rarely invoked in the early years of the Senate.
As Sarah Binder, a Brookings Institution expert on Congress and a professor at George Washington University, explained in 2010 testimony to the Senate Rules Committee, Burr’s intent was to produce a “cleaner rule book” that wasn’t too thick with duplicative procedures. And he thought the previous question motion was the kind of superfluous rule that could be eliminated.
Unfortunately for the nation, the previous question motion wasn’t the least bit superfluous. This motion turned out to be the only way to force the Senate to move off a particular topic. When the Senate took up Burr on his call, it allowed senators to lock the Senate into endless, pointless debate — halting progress even if a majority of the Senate wished to move forward to a vote.
The filibuster was born.
Since then, the rules permitting filibusters have been changed many times — and with increasing frequency.
In 1917, President Woodrow Wilson successfully urged the Senate to create a process, known as “cloture,” which would allow a two-thirds majority of the Senate to break a filibuster and bring a matter to the Senate for a final vote. The number of votes necessary to end a filibuster, whether on a piece of legislation or on a confirmation vote, was reduced to three-fifths of the Senate (ordinarily 60 votes ) in 1975.
In the 1970s, Congress created a process known as “budget reconciliation,” which allows many taxing and spending bills to become law with a simple majority vote, bypassing the filibuster. In 1996, Congress enacted the Congressional Review Act, which allows Congress to overturn recent federal agency regulations without having to deal with the filibuster.
And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.
Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.”
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“there are four broad ways that senators can weaken the filibuster without eliminating it altogether.”
“Make fewer bills subject to the filibuster”
“Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.”
“Make it easier to break a filibuster”
“Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.”
“After he voted to acquit Donald Trump of inciting the Capitol riot, Senate Minority Leader Mitch McConnell (R–Ky.) explained why the former president was guilty. McConnell explained the apparent contradiction by arguing that the Senate does not have the authority to try a former president. But as he conceded, that is “a very close question,” and McConnell’s rationale for his vote is puzzling in light of what he did after the House voted to impeach Trump a month ago. McConnell’s mixed message reflects the predicament of a party that has built its identity around a reckless, unprincipled demagogue whose influence will continue to weigh down Republicans for years to come.
“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty,” McConnell said in a Senate floor speech on Saturday after seven of his fellow Republicans joined 50 Democrats in voting to convict. “There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. The issue is not only the president’s intemperate language on January 6th….It was also the entire manufactured atmosphere of looming catastrophe—the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-president.”
McConnell rejected the notion that Trump’s rhetoric was typical of the language commonly used by politicians and that it is therefore unreasonable to blame him because some of his supporters took him more literally than he intended. “The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things,” he said. “Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.”
McConnell also noted that Trump’s “unconscionable behavior” continued after the riot started: “Whatever our ex-president claims he thought might happen that day, whatever reaction he says he meant to produce, by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the administration. But the president did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.”
To the contrary, “according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election! Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.”
While Trump urged his supporters to “stay peaceful” in a tweet he posted an hour and 45 minutes after the riot began, McConnell noted, “he did not tell the mob to depart until even later”—more than three hours after the protest turned violent. “Even then,” McConnell said, “with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.”
McConnell’s indictment of Trump, which elaborated on his previous criticism of the former president’s conspiracy mongering and his role in provoking the riot, could have come straight out of the arguments made by the House managers charged with prosecuting the former president. Why did McConnell nevertheless vote to acquit Trump?
“Former President Trump is constitutionally not eligible for conviction,” McConnell said. “There is no doubt this is a very close question. Donald Trump was the president when the House voted, though not when the House chose to deliver the papers. Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion. But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted: the president, vice president, and civil officers. We have no power to convict and disqualify a former officeholder who is now a private citizen.””
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“McConnell’s compromise seems to be aimed at appeasing the majority of Americans who supported Trump’s impeachment without alienating the majority of Republicans who did not.”
“A new poll hints at one potential reason so many Republican lawmakers remain wary of distancing themselves from former President Donald Trump and seem reluctant to convict him in the Senate’s impeachment trial: There’s a real possibility they’d endanger their electoral prospects.
In a new survey from Vox and Data for Progress, 69 percent of Republicans said they’d be less likely to vote for a political candidate in their state if that person found Trump guilty in the trial, with 56 percent of Republicans saying they’d be much less likely to do so, and 13 percent saying they’d be somewhat less likely to do so.
Many Republicans, too, indicate that they don’t see Trump as being at fault for the January 6 attack on the Capitol.
Broadly, only 22 percent of Republicans surveyed blame Trump for the insurrection, compared to 91 percent of Democrats and 64 percent of independents. Support for the impeachment trial is similarly split along partisan lines, with 12 percent of Republicans agreeing that the Senate should find Trump guilty; 82 percent of Democrats and 52 percent of independents feel the same. Overall, 48 percent of likely voters believe Trump should be found guilty.”
“These days, Manchin couldn’t be in a better spot. His ally Chuck Schumer is now majority leader and Joe Biden is president after running as a uniter. They need his support on just about everything, and Manchin has spoken to Biden several times in the past week alone.”
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“Compared to most Democrats, Manchin is a fiscal conservative, often votes with the GOP on abortion legislation but has tried to cut deals on everything from immigration to gun background checks. He’s found more success lately on coronavirus aid than past endeavors, and is already pushing Biden’s package in a more moderate direction.
The Senate is already taking cues from Manchin, approving his amendment with Sen. Susan Collins (R-Maine) 99-1. Manchin famously endorsed Collins in her 2020 battle for reelection, which burnished both of their bipartisan credentials.”
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“perhaps the most important major issue where Manchin will side with the GOP is on the minimum wage. He simply seems immovable on his opposition to a $15 national hourly rate.
“I would amend it to $11. You know that. Because I think that’s basically a base that we should have in America right now,” Manchin said, explaining that he would raise the wage up from $7.25 over two years. “It gets people who work 40 hours at least over the poverty guidelines. The states that have $15, already have it. That’s great.””
“Thirty-one days into the new Congress and weeks after the Georgia Senate runoffs gave them 50 seats, Democrats now officially control the functioning of the Senate.
It took weeks of negotiation between party leaders to decide how Democrats and Republicans would share power and resources in the evenly divided Senate, as Senate Minority Leader Mitch McConnell stonewalled the process, trying to extract promises from Democrats about retaining the filibuster. That obstruction left Republicans chairing committees, despite the seating of a 50-50 Senate, in which Democrats, through Vice President Kamala Harris, hold the tie-breaking vote. But on Wednesday, the Senate finally passed an organizing resolution largely sharing power. The resolution was adopted by unanimous consent.”
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“The belated passage of the organizing resolution eliminates the trouble Democrats ran into trying to confirm President Joe Biden’s Cabinet nominees without technically being seated as the majority. In the Senate Judiciary Committee, for example, incoming Chair Sen. Dick Durbin (D-IL) had to request that Sen. Lindsey Graham (R-SC) schedule a hearing for Biden’s attorney general nominee, because Graham still held the gavel. Graham rejected the request, underscoring the stakes of the hold-up over the organizing resolution.”
“Senate Minority Leader Mitch McConnell is no longer holding up the Senate organizing resolution — after two Democrats confirmed that they won’t be blowing up the legislative filibuster any time soon.
In the past few weeks, Senate Majority Leader Chuck Schumer and McConnell have been working to negotiate the organizing resolution — which governs committee membership and funding allocation — in the 50-50 Senate. The leaders had previously been at an impasse because McConnell had demanded that Democrats commit to keeping the legislative filibuster intact as part of the resolution — something Schumer was unwilling to do, since it would reduce the party’s leverage in negotiations over future legislation.
Since the organizing resolution could be filibustered — and would need 60 votes to pass — McConnell’s opposition effectively allowed him to block the measure from advancing.
And while he didn’t get the changes to the organizing resolution he wanted, McConnell’s approach still worked, in a way: Amid the impasse over the agreement, two Senate Democrats — Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — publicly restated that they would not vote to eliminate the filibuster. Without their backing, Democrats simply won’t have the numbers to do a rules change: All 50 members of the caucus would need to get behind a change to the filibuster for it to happen. (This position is consistent with stances both lawmakers have vocalized before.)”
“Even before last week’s deadly invasion of the Capitol, McConnell, to his credit, forcefully rejected efforts to challenge duly certified electoral votes for Biden. “If this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral,” he warned less than an hour before he was forced to flee the president’s enraged fans. “We would never see the whole nation accept an election again,” he added, and “every four years would be a scramble for power at all cost.”
Based on “sweeping conspiracy theories,” McConnell noted, “President Trump claims the election was stolen,” but “nothing before us proves illegality anywhere near the massive scale…that would have tipped the entire election.” He added that “public doubt alone” cannot “justify a radical break” from historical practice “when the doubt itself was incited without evidence.”
These were strong words, but they came two months too late. From the moment that Trump began insisting that he actually won the election by a landslide, it was clear that the president’s conviction had no basis in reality. Yet McConnell humored Trump, neither backing nor rejecting his wild claims, based on the premise that Biden’s victory should not be conceded until the president had exhausted his legal options and the Electoral College had met. In the meantime, the fantasy underlying last week’s riot grew and spread, unchallenged by all but a few Republican legislators.”
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“Even McConnell and Pence are models of bravery compared to Sens. Ted Cruz (R–Texas) and Josh Hawley (R–Mo.), who led the legally groundless objections to Biden’s electoral votes in the Senate. In doing so, they cynically and recklessly reinforced the twin delusions that gave rise to last week’s violence: that Trump won the election and that Biden’s inauguration could still be prevented.
At the same time, neither Cruz nor Hawley had the guts to explicitly endorse those beliefs. They calculated that they could reap the political benefits of kowtowing to the president’s supporters without paying the political cost of looking like kooks. It apparently never entered the minds of these two Ivy League lawyers that they might pay a cost for so blatantly trying to advance their careers by sacrificing their supposed devotion to the Constitution. The crucial question for the Republican Party now is whether they were right to ignore that possibility.”
“After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote.”
“the Senate is an enormous problem for Democrats given the current political coalitions, in which Democrats are dominant in cities while Republicans triumph in rural areas. And because the Senate is responsible for confirming Supreme Court picks, that means the Supreme Court is a huge problem for Democrats too. Sure, Democrats might win back the Senate this year — indeed, they were slight favorites to do so before the Ginsburg news. But in the long run, they’re likely to lose it more often than not.”
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“the overall U.S. population (including Washington D.C. and Puerto Rico) is split almost exactly evenly between these buckets: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.”
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“Because there are a lot of largely rural, low-population states, the average state — which reflects the composition of the Senate — has 35 percent of its population in rural areas and only 14 percent in urban core areas, even though the country as a whole — including dense, high-population states like New York, Texas and California — has about 25 percent of the population in each group. That’s a pretty serious skew. It means that the Senate, de facto, has two or three times as much rural representation as urban core representation … even though there are actually about an equal number of voters in each bucket nationwide.”
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“Since rural areas tend to be whiter, it means the Senate represents a whiter population, too.”
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“In a strong national environment for Democrats, in other words, the Senate can be competitive. Generally speaking, at least. A Democratic-leaning environment wasn’t enough to overcome the Senate’s baseline GOP-lean and a bad map in 2018. Democrats lost seats. And in an average year — and certainly in a year like 2014 where Republicans have the advantage — Democrats face dire prospects in the Senate.”
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“despite their current 47-53 deficit in the Senate, Democratic senators actually represent slightly more people than Republicans.”
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“the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally. That’s likely to make the Republican majority on the Supreme Court pretty durable.”
“The Senate and Electoral College systematically underweight the votes of people of color — and the judiciary operates directly downstream of those biases. Washington, DC, home to the largest plurality of Black Americans in the country, is excluded entirely from federal representation. The filibuster has historically been used to block or delay anti-lynching laws and civil rights legislation”
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“Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote. A 2019 study found that Republicans should be expected to win 65 percent of presidential contests in which they narrowly lose the popular vote, and could potentially win while losing the popular vote by as much as 6 percentage points. And this November, FiveThirtyEight’s Nate Silver calculates that Democratic nominee Joe Biden only has a 6 percent chance of winning the Electoral College if he wins the popular vote by 0 to 1 points, a 22 percent chance if he wins by 1 to 2 points, and less than a 50 percent chance if he wins by 2-3 points.”
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“The Senate is even more extreme. In a 2019 Data for Progress analysis, Colin McAuliffe found that the Senate has a 3 percentage point tilt toward Republicans (double the 1.5 percent skew in the Electoral College). And that is probably an understatement — Silver recently calculated that the Senate is “effectively 6 to 7 percentage points redder than the country as a whole.” As my colleague Matt Yglesias points out, in 2014, Republican candidates won 52 percent of the popular Senate vote and gained nine Senate seats; in 2016, Democrats won 54 percent of the vote and gained only two seats; and in 2018, Democrats won 54 percent of the vote and lost two seats.
“Because the president appoints federal judges and the Senate confirms them, these biases are also reflected in the judiciary, where the Trump administration has already filled federal court benches with an unprecedented number of young, highly ideological conservative judges, including two Supreme Court justices.
It’s important to underscore the mechanism that generates and sustains this partisan bias: US political institutions systematically underweight the interests of nonwhite Americans.”
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“Analyzing the results of the 2016 presidential election, statisticians Andrew Gelman and Pierre-Antoine Kremp found that “per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.”
Behind the Senate’s partisan tilt is that it overrepresents people living in small states who tend to be whiter, on average, than people living in larger states. California, which has large Black and brown populations, and Wyoming, a predominantly white state, have equal representation in the Senate, despite the former having over 60 times more people than the latter.”
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“this racial skew distorts policy preferences on issues ranging from gun control to the minimum wage to environmental policy. For instance, 48 percent of Americans believe controlling gun ownership is more important than protecting gun rights; however, when you weigh voter preferences as the Senate does — giving equal representation to each state — support for gun control drops a whopping 5 points, to 43 percent.
Why? Because the Senate overweights the preferences of white Americans, who tend to favor gun rights, and underweights the preferences of Black and brown Americans, who tend to favor gun control. By that same mechanism, McAuliffe finds that support for a $15 minimum wage also drops 5 points (from 58 to 53 percent), and a $100 billion yearly investment in green social housing drops 3 points (63 to 60 percent).”
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“This is the status quo that Just Democracy’s coalition members aim to change — and they have a few proposals to do so.”