When the Founding Fathers wrote the Constitution, they determined that there might eventually be some key questions which would come before the Congress which ought to require greater than a simple majority for congressional action. It, therefore, was decided that a two-thirds vote would be necessary within one of the two Chambers for such a matter to proceed. As a result, the Constitution requires a two-thirds vote in both Chambers to over-ride a presidential veto, to pass a Constitutional amendment, and in either Chamber to expel a Member. The Senate would require a similar super majority to ratify a treaty or to convict someone on impeachment charges. The Constitution ordered that each Chamber should establish it own rules of procedure by a mere simple majority.
The question of super-majorities was addressed in the Federalist Papers by Alexander Hamilton in Federalist Paper No. 22 when he argued that one of the major operational problems with the Articles of Confederation had been that congressional action could be stymied by a minority vote of 1/3 of the members. Similarly, in Federalist Paper No. 58, James Madison wrote that super majorities would undermine the fundamental notion of majority rule.
In 1805, as a result of a fluke, Vice President Aaron Burr ruled on a procedural matter and the next Senate adopted it, to dispense with the need to “move the previous question” motion. It became incorporated into the Senate rules, thereafter, thus setting up an opening for what would become the filibuster. Throughout the 19th Century and into the first decades of the 20th filibusters were largely threatened but not employed. When, subsequently, Senators opted to stall Senate action, these opposing Senators were required to remain in place and talk.
In 1975, after the filibuster was used too frequently for some Members liking, the post-Watergate Democratically controlled Senate lowered the bar from two-thirds of the Senate to three-fifths of those present and voting. Since that time filibusters have rarely been “speaking” delaying tactics, but merely threatening ones. They simply put majorities on notice that 60 votes would be required on whatever issue was being challenged.
Since 1975 there have been some exceptions and modifications accepted to require only a simple majority. These included votes on Federal Court nominations, Executive Branch appointments, and on budget reconciliation (as just used to pass the American Rescue Act.) In general, however, the threat to demand a 60 Senator majority has prevailed to conduct the Senate’s business.
Filibusters or their threatened use was used or abused by Republicans but also by Democrats as well. President Biden, a long-standing Senate traditionalist, had seriously challenged eliminating the filibuster. Given the current Senate opposition to much of his program, the President has indicated that he might be prepared to encourage some efforts to modify or even eliminate the Senate filibuster.
Some of the Senators are seeking a compromise regarding the elimination of the filibuster. These include returning to a “talking” filibuster or requiring a majority of those supporting the filibuster to remain present on the Floor during any debate which exceeds two hours; a move which is totally antithetical to the Senate’s historical norms and folkways.
The Republican leadership in the Senate, which made extensive use of their power when they were in the majority and they modified the rules, now—with the Democrats in the effective majority-- have threatened to disrupt Senate debate with extensive delaying and dilatory motions. At the same time as President Biden’s agenda could get stalled in the Senate, while the House is actively moving ahead with passage of many of his primary legislative objectives.
If the Senate Democrats can remain unified, they could eliminate the filibuster. The political costs will only be apparent after the 2022 Congressional election. If the voters are pleased by the actions of this 117th Congress and the Democrats maintain power in the Senate, then few people—except for historians--will remember this battle. If the Republicans regain command of the Senate in two years, then, undoubtedly, the Democrats will have lost control not only of the process but their agenda as well.
There is a curious under the radar action transpiring here in the battle for the future of the Republican Party. If there are Senators who will engage in crafting a filibuster compromise, it might free a more moderate wing of the GOP to assert itself on policy issues as Republicans face their political future.
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