President Joe Biden isn’t in favor of getting rid of the filibuster. And there aren’t 50 Senate Democratic votes to do so at this point, either.
But that hasn’t deterred some Democratic Senate candidates, including in North Carolina, from calling for changes to the rule used to stymie debate and block legislation. Or its complete removal.
“We don’t need filibuster reform, we need filibuster abolition,” said former state Sen. Erica Smith in response to questions The News & Observer and Charlotte Observer sent to Senate candidates. “We either end the filibuster or we watch as our democracy ends.”
The Senate filibuster allows a single lawmaker to hold up legislation and requires 60 senators to agree to end debate on most legislation, a key procedural vote under Senate rules.
With Democrats controlling the White House and both chambers of Congress, the filibuster is one way Republicans can halt Biden’s agenda — just as it was a tool for Democrats when Republicans controlled the White House, House and Senate under President Donald Trump.
Trump called for getting rid of the filibuster but met resistance from his own party.
Biden, who represented Delaware in the Senate for more than 35 years, said Wednesday during a CNN town hall event that removing the filibuster would “throw the entire Congress into chaos” and stop all work from getting done.
Smith’s fellow Democrats in the 2022 U.S. Senate race to replace retiring Republican Richard Burr have not called for changes to the filibuster, but none have gone as far as Smith in calling for its complete removal. The top Republicans in the Senate race want to keep it.
‘Jim Crow filibuster’
Some Democrats, like Smith, see blocked efforts to pass voting rights bills in the current Senate as a threat to democracy and see more than echoes of when southern senators used the filibuster to block civil rights legislation, including anti-lynching bills, according to the Senate’s historical record.
Sen. Strom Thurmond, of South Carolina, spoke for more than 24 hours — still a record in the Senate — against the Civil Rights Act of 1957. It wasn’t until 1964, that the Senate successfully overcame a filibuster on a civil rights bill. During that era, it required two-thirds majority to invoke “cloture” on — or end — debate.
“No, I don’t support the Jim Crow filibuster and I am proud to be the only candidate in this race who has been saying that since the start of the campaign,” said Smith, who is Black.
“The filibuster has been used to oppress Black and Brown communities and working people for too long. It perpetuates inequality and injustice and if we’re serious about saving our democracy, fixing our rigged economy, tackling systemic racism, and reforming our broken healthcare system, then we’re going to need to get rid of it.”
Democrats had 60 votes in the Senate when they passed the Affordable Care Act under President Barack Obama. But the chamber is now evenly split with 50 Republicans and 50 Democrats, a figure that includes two independents who caucus with Democrats. Vice President Kamala Harris is the tie-breaking vote.
Control of the chamber is up for grabs in 2022 with North Carolina among the key races. The race has drawn significant candidates on both sides.
“A procedural rule shouldn’t stand in the way of policies that the overwhelming majority of Americans and North Carolinians support, which is why I’d take a look at changes that would benefit our state, recognizing that it also has been used to block harmful legislation in the past,” said Cheri Beasley, a former North Carolina Supreme Court Chief Justice.
State Sen. Jeff Jackson wants to make it more difficult for senators to use the filibuster, including making it a “talking filibuster” where a senator or senators must hold the floor to stop a bill as depicted in the movie “Mr. Smith Goes to Washington.”
“If Mr. Smith has something to say, go right ahead. But I wouldn’t allow someone to make a phone call from South Dakota and anonymously shut down a bill, and that’s what we have right now,” Jackson said. “That doesn’t facilitate bipartisanship. It facilitates bad faith obstructionism.”
Beaufort Mayor Rett Newton, another Democratic candidate, said he favors small changes rather than a massive disruption to the system.
“We can make incremental reform. The fact that we cannot even debate an issue because of the filibuster is just outrageous. Let’s go ahead and get rid of the filibuster for debate and move forward. If all of a sudden it becomes problematic again and leads to more obstruction, then yes, I’m looking at more incremental reform to the filibuster,” Newton said.
Republicans: Keep it
Proponents of the filibuster say the 60-vote threshold encourages bipartisan solutions, keeps the Senate in its traditional role as a check on the passions and partisanship of the day and protects the chamber’s minority. The House, by contrast, can pass any legislation with a majority vote.
“Our framers designed the Senate to function in this way and he doesn’t see why the political winds of the day should be seen as more influential than the framers’ intent,” said Jordan Shaw, a spokesman for former Gov. Pat McCrory.
Long speeches in the Senate have been used since its inception to delay action on legislation. It wasn’t until 1917 that the Senate even put in a rule to allow a vote to end debate. In 1975, the Senate lowered the threshold to end debate from two-third of senators voting to three-fifths of all senators.
“Every principled Senator of any party should support the Senate filibuster. If they do not it’s a good sign that their principles will sway in the wind like a weather vane. It’s an essential protection for the Senate minority,” said former U.S. House Rep. Mark Walker.
“Do you know who is always in the Senate minority? People who want to spend less, not more of our tax money. The problem with the filibuster is not justices or procedures, it’s that the majority party in Washington thinks they can change it at their will to get an agenda across and suppress the minority party. The 60-vote filibuster should stay.”
Even without the filibuster, Senate rules provide plenty of ways for the minority party to slow down even the most basic functions of the chamber — tactics Republican leader Mitch McConnell of Kentucky promised to employ if Democrats eliminate the filibuster.
Biden, earlier this week, alluded to such maneuvers when he said that all work would stop in the Senate if the filibuster were removed. In a CNN town hall event, he said it would “throw the entire Congress into chaos, and nothing would get done,” said Biden, who represented Delaware in the Senate for 36 years.
Democrats do not have 50 votes for doing away with the filibuster at this point as several current members said they do not support it. There is currently no serious attempt to increase the number of Supreme Court justices beyond nine, though some liberals have called for expanding the court previously.
“Democrats know their fringe-Left agenda is going to be rejected by voters in 2022, so they are willing to do whatever it takes to enact their woke policies before then,” said Jonathan Felts, a senior advisor to Republican candidate and U.S. Rep. Ted Budd, who was endorsed by Trump.
“In this case, they want to end the filibuster so that Vice President Kamala Harris can be the deciding vote on the Democratic plan to stack the Supreme Court with liberal, activist justices. Ted does not support that in any, way, shape, or form.”
What happens if it changes?
The filibuster does not apply to all Senate business.
Cabinet nominees, for example, can be approved with a majority. Certain bills dealing with the budget can be passed by a majority through a once-per-year reconciliation process, which is how Republicans passed the 2017 Tax Cuts and Jobs Act and how Democrats passed Biden’s COVID relief bill — the American Rescue Plan — earlier this year.
During the Obama presidency, Senate Democrats removed the 60-vote threshold for judicial nominees below the Supreme Court. Under Trump, Senate Republicans removed it for Supreme Court nominees, allowing the confirmation of three justices. So the filibuster has been changed throughout the years.
“For issues they care about, they’ve already ended the filibuster,” Smith said, referencing Republicans, the 2017 tax cuts and judicial appointments.
Without the filibuster, Democrats could push to pass police reform, a smaller minimum wage increase and, perhaps, a scaled-down voting rights package before 2022. Republicans, if they regained control of the chamber with less than 60 votes, could take on border security, abortion rights and tighter rules on unions, for example, without the filibuster.
That’s OK with Jackson — even if it means losses on issues Democrats care about.
“I don’t think either party is getting to 60 members in the Senate anytime soon. We have to be able to govern outside of the occasional reconciliation bill, and that means sometimes the other party gets to legislate. And if they do so recklessly, they’ll endanger their majority and risk their laws being undone by a new majority,” Jackson said.
“That goes for my party, too. And that’s basically the way a democracy should work. No one can point to the modern filibuster as a success. No country would look at it and say, ‘That’s brilliant, let’s do it here.’”
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