The Two Year Chit: A Filibuster Suggestion

Senator Richard Russell was one of many Senators who used the filibuster to oppose civil rights legislation in the 1950’s and 1960’s.

Ah, the filibuster! Possibly the worst, clunkiest, and most contra-democratic feature of the modern United States Senate.

It is, believe or not, the brainchild of Aaron Burr. In 1805, as Vice-President and thus as President of the Senate, he proposed abolishing motions to call the question so as to allow all Senators to speak their minds on issues of concern to them. The next year he was out of office and found himself arraigned for treason, of which he was manifestly guilty, but that’s a different story for another day. The Senate followed his suggestion and so began a tradition of allowing Senators to speak without limit on matters pending for debate — and thus of strengthening the ancient tool of using debate as a delaying tactic. This saw prominent use during opposition to civil rights legislation in the 1950s and 1960s, but in fact the filibuster as an attempt to obstruct legislation is only in very recent years reaching a massive efflorescence.

As matters stand today, a single member of Senate can file a document with the clerk of the Senate which prohibits further debate and action on the floor of the Senate as to most pending matters.¹ This state of affairs will persist until either the filibustering Senator lifts the filibuster, or until three-fifths of the sitting Senators successfully invoke another procedure called “cloture,” which lifts it.

Whatever its original virtues and benefits, filibustering is a significant obstacle to getting things done, and on its face, it’s contra-democratic.² No one has ever been able to determine how many times filibusters have been attempted, but what we do know is that since cloture was first used in 1917, one in seven cloture motions that have ever been made were made in the 116th Congress, 2019 and 2020, representing 328 times in the last two years that one Senator filibustered something and another tried to do something about it.

It renders the Senate effectively a body in which to reliably get things done, one party or the other needs 60 votes. For the foreseeable future, it’s unlikely that either party will do that well at the polls.

There is presently talk amongst Democrats of abolishing the filibuster altogether. As I write, that may address whether the Senate will pass the pending COVID relief bill, over Republican objections that their concerns and preferences were not adequately addressed in the bill’s drafting and passage through the House. More pertinently, this could also affect the passage of H.R. 1, the “For the People Act,” and the John Lewis Voting Rights Act, both of which are perceived to take away tools used by Republicans at the state level to make it more difficult for particular voters, thought likely to vote for Democrats, to register or access polls.

Whichever party is in the minority in the Senate will find the filibuster useful; whichever party is in the majority will generally find it inconvenient. But, these days, every proposal to change the political system has to be evaluated with a metric consisting of “Is this good for my party, right now?” Democrats are interested in a no-filibuster Senate and Republicans are opposed to it.

I’m hesitant. It seems more likely than not³ to me that Republicans will re-take the Senate in the 2022 midterms (and frankly I think they have a good shot at re-taking the House). So, I’d tell Democrats that maybe abolishing the filibuster now is not only hurting themselves in the long term; they may find themselves wanting to filibuster stuff themselves, possibly as soon as January of 2023.

Instead, here’s my suggestion, to which I received a grand total of one response when I floated it on my Twitter feed recently: one Senator gets one filibuster per Congress. As with my proposal to reform the way we select Supreme Court nominees, I make no claim that the idea is original to myself, nor that it would advantage or disadvantage any party. Here’s the objection:

But leadership can just introduce a large number of bills to dilute the value of your limited filibuster.

— Rohit Gupta (@rohitgUCF) March 5, 2021

I don’t actually think the pushback I got raises a particularly salient problem. Yes, duplicate bill-introduction happens, as some scholars have documented and attributed to the motive of “credit-claiming.” So I take the point. And we’d need to figure out what happens in the event of a vacancy and replacement.

So, here’s the rule:

1. Each Senator may, once per Congress, interpose a filibuster to a bill or resolution then pending before the Senate by presenting the Clerk of the Senate with a Warrant of Filibuster. While filibuster is interposed, the Senate may not further debate nor vote upon passage of the bill or resolution.
2. The Clerk shall accept no Warrant of Filibuster as to the following: a) reconciliation of spending and appropriation bills already passed by the House of Representatives; b) ratification of international trade agreements to which “fast-track” authority shall have previously been granted by Congress; c) invocation of the Congressional Review Act; d) invocation of the War Powers Act; e) A proposed termination by Congress of a Presidential declaration of a national emergency; or f) judicial nominations [this mirrors existing exceptions to the filibuster].
3. The Clerk shall accept no Warrant of Filibuster from any Senator more than once per Congress. In the event of a vacancy in any seat filled by a successor through operation of state law, the successor Senator may present Warrant of Filibuster only if the same shall not have been previously presented by any predecessor within that same Congress.
4. Interposition of a filibuster to a bill or resolution shall apply to any succeeding bill or resolution substantially similar in content and effect to that to which the filibuster shall have been previously interposed and neither lifted nor set aside through cloture; any Senator may request a ruling from the Parliamentarian as to whether an interposed bill is substantially similar to a matter then pending before the Senate.
5. Cloture may be invoked upon the submission to the Clerk of the Senate a written motion for cloture signed by not less than sixteen Senators. Thereafter, if within ten days three-fifths of all Senators duly sworn indicate in writing their approval of the motion for cloture, debate shall proceed with no Senator thereafter having more than one hour to debate and no more than thirty hours debate total, divided equally between the floor managers for and against the pending bill or resolution [this mirrors existing Senate Rule 22(2), governing cloture motions].

I think the one-chit rule keeps what filibuster proponents generally say ought to be kept — the ability of a Senator to forestall the most extreme legislation that the majority might advance, and thus to force deliberation and compromise on those ideas that might be particularly sensitive to one or a few states. But it also imposes upon that Senator a substantial incentive to not do this except in extreme circumstances.

If this were the rule right now, of course, Republicans who are only barely in the minority and functioning under the effective leadership of Mitch McConnell, could be expected to game the system. They’d organize and McConnell would decide which Senator would impose a filibuster to any given piece of legislation, likely the Senator he judged to be the least likely to defect from opposition to it. He and the filibustering Senator would then be in a position to extract concessions from the majority — or not; maybe they’d just force the issue and say “Never!” as one would expect for something like H.R. 1.

But they could only do this so often. Fifty times, in this Congress. Unlike recent years, when hundreds of filibusters have been used to stop, or attempt to stop, hundreds of pieces of legislation. So, McConnell and his colleagues, or the Democratic leader in the future 118th Congress I fear will be run by Republicans, would have to evaluate whether it was worth it to burn a chit on a given proposal, or whether to use the normal deliberative and persuasive process as best they could. They would have to ask themselves questions like, Would this bill be so bad we simply couldn’t live with it? Can we wait until we get a majority in a few years and reverse it? Can we maybe find some defectors in the other party and defeat it without a filibuster? Can we get some amendments to mitigate it or make up for it in some other way? Filibustering, or not, becomes a more careful political calculation, and instead, Senators are encouraged to do other things about bills that they dislike.

Meanwhile, the majority gets to legislate, most of the time, on most things. That is what legislative bodies are supposed to do, after all.

Logrolling. Negotiation. Deliberation. Compromise. Attending to America’s business. These are the sorts of things that are supposed to be happening in the Senate. The filibuster was supposed to help these things happen, but it’s become a barrier to them instead. They don’t seem to be now; the Senate is turning into a partisan free-for-all where no one can agree on anything and everyone insists on winning everything and the filibuster seems to catalyze rather than remedy this undesirable and contra-democratic state of affairs.

A one-chit-every-Congress rule might be a way we could move away from the paralysis of hyper partisanship, and towards the way things are supposed to be, which stops short of abolishing the rule entirely.

1. There are six exceptions that even potentially matter even to those of us who are massive politics wonks, addressed in the text of my proposed new rule below.
2. This article isn’t intended to directly argue that the Senate should become more reflective of the voters as a whole, the way the House is. But I do point out that right now, in theory, Wyoming’s junior Senator Cynthia Lummis, who was elected in 2020 with 198,100 total votes but nearly 73% of the votes case, can bring anything but the six things identified above to a halt. Those not quite 200,000 voters are likely to be quite pleased by that, but giving 200,000 voters the ability to stop something that tens of millions of other voters presumably want (evidenced by their election of 50 or more Senators who favor of the thing that Senator Lummis is hypothetically filibustering), well, that’s not a democratic way to handle it.
3. Please recall that the phrase “more likely than not” does not mean “certain,” it means “as yet indeterminate but estimated to have a >50% probability of occurring.”