Move to End the Filibuster Now—Before Democrats Do
Originally appeared in The Wall Street Journal
The U.S. Senate is broken. That U.S. federal government debt is approaching $39 trillion is only the most obvious evidence proving this point. Since I entered Congress in 2011, we should have passed 180 appropriations bills before the start of the fiscal year they were funding. We’ve passed only six on time. That’s a 96.7% failure rate.
Owing to that dysfunction, in the past 15 years we’ve had five shutdowns, relied on 57 continuing resolutions to fund government on an interim basis, and increased or suspended the debt ceiling a dozen times, allowing the federal government to incur an additional $24 trillion in debt. Despite this record of failure, for some inexplicable reason many of my Republican colleagues believe that maintaining the 60-vote threshold required to end a filibuster is crucial to the future of our republic.
I’ll admit that the 60-vote cloture threshold has prevented many bad bills from becoming law, and that without it bad bills would become law more easily. But it also prevents good bills from getting passed.
Before 1917, when senators established the cloture vote in Senate Rule 22, there was no formal way of ending debate (a filibuster) in the Senate. Because unlimited debate was the tradition of the Senate, cloture was invoked only five times in the first approximately 50 years of its existence. That’s because the cloture vote was intended to end a debate that two-thirds (later changed to three-fifths) of senators believed had gone on too long. A cloture vote ended debate on the Civil Rights Act of 1964, for instance, but only after a 57-day filibuster (57 days of debate). It was never intended to prevent all debate; however, it has evolved to do exactly that.
Lawmakers routinely use the cloture vote today to snuff out discussion and thoughtful consideration of proposed amendments to legislation being debated. The result is a charade in which both sides agree to a set number of amendments that will be voted on that are guaranteed to fail, protecting the original text of the legislation from alteration.
Some have suggested using a “talking filibuster” to pass the SAVE America Act. In theory, the talking filibuster would allow passing a bill with a mere majority by making the opposition exhaust its ability to continue debate. Before 1986, that was possible due to the “two-speech rule,” which limited every senator to only two speeches on a given debate question during a single legislative day (which, absurdly, can stretch on for weeks because of how the Senate defines “legislative day”). But Minority Leader Robert Byrd in 1986 sponsored and passed a vote to change the precedent of the Senate whereby offering motions and amendments wouldn’t be considered a speech. So, instead of actually having to speak to continue debate, senators can offer an unlimited number of amendments to prevent a simple majority vote, thus requiring a cloture (supermajority) vote to end debate.
Such are the convoluted rules of the Senate. Senators will vociferously defend them by invoking the tradition and uniqueness of the Senate. I don’t share their reverence for the institution, nor does most of the public. And it is public opinion that will eventually end the filibuster.
Democrats have already made their intentions clear. Even though 31 of them signed a 2017 letter led by Republican Sen. Susan Collins vowing to maintain the filibuster, only two Democrats, Joe Manchin and Kyrsten Sinema, voted not to end it in 2022. Both were purged from the Democratic Party and retired from the Senate. The current divide in the Republican conference is between those who believe Democrats will end the filibuster as soon as they have the chance, and those who hope against all hope that Democrats will preserve it.
No bicameral state legislature has a supermajority requirement for passing all legislation, although several states have wisely used it for passing tax increases. The lack of supermajority requirements hasn’t been calamitous because unlike the federal government, 49 states are required to balance their budgets. Although I’d hate to lose the ability to block awful Democrat legislation, I am willing to acknowledge reality and beat Democrats to the punch before it’s too late. By ending the filibuster now, Republicans could pass important legislation that the public overwhelmingly supports, but Democrats oppose.
At a minimum, if the SAVE America Act fails to pass, the Senate should immediately debate and vote on a rule change (requiring 67 votes) to end the filibuster. It would be interesting to see whether Democrats would vote yes when Republicans are in power. Forcing them to defend the rule now could politically shame them into preserving it later: It’s the only chance I see of dissuading them from voting yes once they regain power.
Mr. Johnson, a Republican, is a U.S. senator from Wisconsin.