Many times I am asked by my Republican friends why didn’t the Democrats pass a law and have President Obama sign it when they had control of both the US Senate and House of Representatives from 2008 to 2010. Similarly, I am asked by my Democratic friends why the Republicans simply don’t simply pass a law and have President Trump sign it, since they now are in control of both the Senate and House of Representatives.
The short answer is the filibuster rule. People have usually heard of it, but have no idea what it is. A filibuster is when a member of a group begins speaking about whatever is being considered, and never stops, thus preventing a vote on the matter from ever happening. The filibuster rule is a rule from Parliamentary Procedure, as written in Robert’s Rules of Order, that insures everyone gets to have their say, but you have a way to theoretically end the debate and vote on the matter. Everybody knows that for most things in a group in a democracy, majority rules. However, when the rules of Parliamentary Procedure were devised, they recognized that the majority could simply cut off anyone from debating or having their say by simply voting to end the debate (by majority vote). Therefore, the rule states that in order to “cut off debate” you must have a “super-majority” (something more than a simple majority). In traditional parliamentary procedure rules, you must have 2/3rds vote. After the vote to end (cut off) debate on a matter, you then vote on the matter being considered.
The US Senate has 100 members, therefore, traditionally you had to have 67 votes to end debate and then vote on the matter being considered. However, the Senate changed its rules in 1975 to only require 60 votes to cut off debate and allow voting on the matter. The reason the Senate made this change is very relevant today – if you had 34 Senators that opposed a new law (a bill), all that side had to do was vote against ending debate, and the bill would never be considered or passed. Today, the same thing happens if you can get at least 41 Senators that are against a bill: you can simply always vote to keep debate open forever, and the bill will never be voted on or passed.
In practical terms, all you need to do is have at least 41 Senators pledge to support a filibuster on a particular bill, and the matter is not brought up for consideration. Therefore the majority does not rule in the US Senate: you have to have 60 votes to pass most bills to overcome the opposition to ending debate.
After explaining how the filibuster rule works, the next question I often get is why the Senate would have such a rule – why not just have a majority vote on when to end the debate? The answer is that Senators know the history of who the majority party is in the Senate – it often changes. Therefore, even when they are in the majority, they know they may be in the minority after the next election, and they don’t want the other party (majority) to be able to pass whatever they want.
On one hand, the filibuster rule is anti-democratic: the will of the people is being denied, as expressed in the majority of elected US Senators. On the other hand, it seems fair to let the minority party be assured they will always have their say on any matter being considered. What do you think? Should the US Senate keep the Filibuster Rule, or should they change it or throw it out?