Bob Buckley for The Examiner: Does an Arcane Senate Rule Put Democracy at Risk?

March 24, 2021

Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley outlines the much-discussed filibuster, including a brief overview of its history, the most explosive uses and the recent changes to the law.

The article, Does an Arcane Senate Rule Put Democracy at Risk?, was published in the March 19 edition of The Examiner. An excerpt from the article is below.

Filibuster is a word that is not found in the United States Constitution. It is a concept unique to the United States Senate and has been in existence since 1837. It is a parliamentary procedure to prevent a measure from being brought to a vote.

Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn” – 60 out of 100 – vote to bring the debate to a close by invoking cloture under Senate Rule 22. The Senate’s power to establish rules is derived from Article One, Section 5 of the Constitution that provides: “Each House may determine the rules of its proceedings…”

The first Senate filibuster occurred in 1837, but the defining moment came in 1841 during debate on a bill to charter a new national bank. Senator Henry Clay tried to end the debate, but Senator William R. King threatened a filibuster, saying that Clay “may make his arrangements at his boarding house for the winter.” Other senators backed King, and Clay abandoned his attempt to end debate.

If you have ever watched the movie, “Mr. Smith Goes to Washington,” you can get an idea of what is involved in a filibuster. Jimmy Stewart plays a young senator engaging in a filibuster to block legislation. He spends over 24 hours on the floor of the Senate using the filibuster. It is considered one of the best movies of all time; it won one Academy Award and was nominated for 10 more.

Until 2013, the filibuster was periodically used to block judicial appointments. However, in 2013, the Democratic majority in the Senate had wanted to fill four vacancies on the Court of Appeals for the District of Columbia, perhaps the most powerful and influential court other than the Supreme Court. The Republican minority of 48 Senators attempted to block the appointments with the threat of filibuster. The Democrats voted 52-48 to reinterpret the words “three-fifths” in Rule 22 to mean “simple majority.” Senator Orrin Hatch, a Republican from Utah, later said that the Democrats made 60 equal 51.

In 2016, the Republicans controlled the Senate and blocked the appointment of Merrick Garland to the Supreme Court. After Justices Antonin Scalia and Ruth Bader Ginsberg died, and Justice Kennedy retired in 2018, President Trump was able to make three appointments to the United States Supreme Court, utilizing the “nuclear option” after a rule change was passed by the Republican-controlled Senate. The Democrats should have seen in 2013 that sauce for the goose was sauce for the gander as the Republicans utilized the nuclear option to not only replace three Supreme Court justices but also allowed the Republicans to approve over 174 district judges and 54 appellate judges.

There is now a debate over ending the filibuster on legislation. The House of Representatives recently passed House Bill 1, a broad bill that would create automatic, same-day and online voter registration nationwide. It includes some measures that would require states to overhaul their registration systems. It would expand absentee voting, limit the states’ ability to remove people from voter rolls, increase federal funds for election security and reform the redistricting process.