Want to imagine a world without a filibuster? We basically have one.
The Senate has long been touted as the saucer that cools the hot tea sent over from the House, and the filibuster is an integral component in that saucer cooling.
But take a look at most of what the Senate does: When it comes to confirming judges and executive nominees, it’s a simple majority threshold to cut off debate. When it comes to major legislation such as the 2017 tax cuts or the Affordable Care Act, it relies on the expedited procedures allowed under the Budget Reconciliation Act to push through things along majority lines, no filibuster allowed.
Recall the summer of 2017, when the GOP-led House and Senate attempted to repeal the Affordable Care Act using reconciliation.
In the years after the ACA’s passage, Republican-controlled Houses and Senates had voted dozens of times to repeal the ACA, well aware a filibuster or a veto by Barack Obama would kill such efforts.
But in 2017, in full control of Congress and the White House, and with only a majority vote needed to finally — finally! — repeal the ACA, the Republican Senate could not muster a majority.
Republican Sens. Lisa Murkowski, Susan Collins and John McCain knew their vote would actually have consequences. They voted no. The repeal effort died. It turns out that when the votes count, the tea gets pretty cool.
Despite its reputation for being locked in amber and quaint fustiness (no electronic voting, no drinking of anything but water or milk on the floor), the Senate is an institution that has changed quite a bit in the history of the republic.
Senators weren’t directly elected until 1914. The vice president used to spend all of his time presiding over the chamber. One could do nothing but wait out a filibuster in the Senate until 1917, when senators adopted Rule 22 allowing a two-thirds majority vote to cut off debate, or invoke cloture. In 1975, senators lowered the threshold to a three-fifths vote. The vote threshold has been lowered to a majority vote in recent years for judicial and executive nominees.
Talking endlessly to prevent a vote isn’t even unique to the Senate.
The House initially allowed representatives to engage in uninterrupted debate until its growth in members made that unwieldy, so they changed the rules.
But that doesn’t stop the pearl-clutching when the prospect of change comes along. The latest debate about the future of the filibuster revolves around the role of the Senate.
Senate Majority Leader Mitch McConnell, who has wielded the filibuster as a defensive measure while in the minority and pushed the rule change that lowered the filibuster threshold for Supreme Court nominees to a simple majority, has gone into high dudgeon, warning of the dangers of a Democratic majority who will nuke the filibuster for legislation so they can dismantle America.
“Now they are saying if they ever get power, they intend to tear up the rule book to force radicalism on our country,” he said on the floor on Sept. 16.
The day before, it was Majority Whip John Thune of South Dakota, arguing that the filibuster preserves the Senate’s special place in government. Speaking amid a back-and-forth on the floor on Sept. 15 with Minority Whip Richard J. Durbin, D-Ill., and Murkowski, Thune said, “No matter how frustrating the filibuster may be in the moment, preserving it is essential to preserving this institution of the Senate and the purpose for which it was created. It’s essential to protecting minority rights, and it’s an essential check on tyrannical majorities that would seek to curtail our freedoms.” He added: “The legislative filibuster is the key rule preserving the Senate’s constitutional role as a check on partisan passion.”
Durbin asked if the Senate was so special, what happened?
“Why is this such an empty chamber? Why all these empty desks when so many things are needed to be done in America? Because we have stopped legislating. We have stopped debating. We have stopped amending. And you say, boy, we have to preserve this. We have to do everything we can to preserve this. We know better than that,” Durbin said.
Murkowski obliged with the Senate’s killer metaphor, oft-repeated by Senate mandarins and amateur historians everywhere: “I have seen the frustration. I also see the benefit of being more methodical, of being that cooling saucer in the process of governance and particularly good governance.”
Few of these debates can take place without someone deploying the killer metaphor: that the Senate is the cooling saucer that mellows out the hot passionate tea that the House — with its belligerent, nay, tyrannical! majority approach — brews up so incautiously to reflect the rabble-rousing masses who elect them.
Which is, to put it mildly, hooey.
The Senate was created by the Founding Fathers as the crux of the Great Compromise that allowed the ratification of the Constitution. That compromise was necessary because small states worried big states would dominate a legislature solely determined by population. A countervailing chamber, the Senate, was created opposite the House.
It was about power sharing. It still is.
It was about giving small states more of a say in how the country is governed.
This is the dynamic that has continued to this day.
It’s why Wyoming, which has a population slightly larger than Tucson, Arizona, at around 575,000, has two senators, the same as California, with its population of more than 39 million.
And about the cooling saucer metaphor?
Supposedly George Washington told Thomas Jefferson over breakfast one day: “We pour our legislation into the senatorial saucer to cool it.”
There’s no proof that ever happened.