Opinions

The Nuclear Option

Catherine Yaskira ’24

Opinions Editor

For the first time since 2001 the senate is split 50-50- with Vice President Kamala Harris as a tie breaker, giving democrats barely holding onto a majority in the senate. With a pandemic claiming the lives of nearly half a million Americans, cries for racial justice and police reform, and climate change becoming a more pressing issue by the day, it is more important now than ever that democrats pass progressive legislation quickly. However, this cannot happen with the filibuster intact.   

Neither the filibuster nor cloture has origins in the U.S. constitution. Instead, it was born from a tradition that the chamber would allow for unlimited debate, which senators realized could be used to kill bills. A filibuster is an attempt to block or delay Senate action on a bill or other matter. “It was not until 1917 that the Senate attempted to rein in unlimited debate when it adopted a cloture rule (Rule 22). The rule provided for two-thirds of the Senators to end debate on a particular subject.” (Lindsay Rogers) In recent years, it has been used by both Democrats and Republicans in Congress to block bills and hold power even when acting as a minority power in the senate. Though it is worthy of note that “the filibuster has been used roughly twice as much by Senate Republicans to prevent Democratic legislation from passing than Senate Democrats have used it to prevent Republican legislation.” (Alex Tausanovitch)

For the past 20 years, minority parties in the Senate have used the filibuster’s power to block legislation proposed by the majority party. There has been an average of 53 cloture votes held every year from 2000- 2018, and they will almost certainly continue to increase in frequency. The filibuster’s power has been wielded to kill numerous progressive legislative bills and proves to do more favors for Republicans than for Democrats. Here are just a couple of highlights of the dead bills from the filibuster hay day for senate republicans during the Obama administration. 

Obama: 

Emergency Senior Citizens Relief Act (12/8/2010). 

“This bill would have extended, through 2011, 2009 stimulus bill benefits to recipients of Social Security, Supplemental Security Income, railroad retirement benefits, and veterans disability compensation or pension benefits, as well as a tax credit for government retirees.” (Alex Tausanovitch)

Paycheck Fairness Act (11/17/2010).

“This bill would have made it easier for women to raise discrimination claims against their employer if they were paid inequitable wages. It would also have increased penalties and strengthened protections against retaliation for employees that raised complaints. The bill was filibustered again in 2012, when it received 52 votes.” (Alex Tausanovitch)

Public Safety Employer-Employee Cooperation Act of 2010 (12/8/2010). 

 “This bill would have allowed public safety officers—for example, police and firefighters employed by state and local governments—the right to collectively bargain and form a union.” (Alex Tausanovitch)

The bills that lay dead on the senate floor are not the only casualties of the filibuster. With the knowledge of how filibusters would be used on progressive legislation, much of the democratic agenda under Obama was dead on arrival.

Climate change:

“During the Obama administration, The House of Representatives passed the American Clean Energy and Security Act, which would have set new renewable fuel standards and established a cap-and-trade system for reducing greenhouse gas emissions. However, the proposal was never brought to a vote in the Senate. Since the failure of the cap-and-trade bill, no other significant piece of climate change legislation has received consideration in Congress.” (Alex Tausanovitch)

Gun violence prevention:

“In 2013, it looked like the Senate might have been able to pass a bipartisan bill to expand background checks for gun purchases in the wake of a mass shooting at Sandy Hook Elementary School. The proposal ultimately failed to overcome a filibuster by a vote of 54–46.” (Alex Tausanovitch)

While the filibuster has prevented Democrats from passing progressive legislation, it has also helped them prevent conservative priorities. Under both the Bush and Trump administrations, Democrats used the filibuster to prevent Republicans from stripping reproductive rights. 

Trump:

Pain-Capable Unborn Child Protection Act (1/29/2018).

This bill would have made it illegal to perform an abortion after 20 weeks of pregnancy. (Alex Tausanovitch)

Bush:

Child Interstate Abortion Notification Act (9/29/2006).

This bill would have applied parental consent laws across state lines by making it a criminal offense to transport a minor to another state for an abortion without providing notice to the parent. (Alex Tausanovitch)

The downside of axing the filibuster now would mean that if Republicans retake the majority position, they would also be unencumbered by the filibuster. A double-edged sword if there ever was one. But it is now or never. With the presidency, the house, and a slim majority in the Senate- now is the time to finally pass progressive reform. And that will not be done with the filibuster still in the arsenal of Senate Republicans. Bipartisanship is a great thought, but it requires sacrifice and time- neither of which can be spared. People are dying. By the thousands. Every day. The Biden agenda cannot afford to be slowed or stopped by filibusters. So, it is time to use the nuclear option- or more politely, “reform by ruling.” This would entail Democrats setting a new Senate precedent. “The chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways.” (Molly E Reynolds) This would only require a simple majority. The filibuster has stood in the way of progress for long enough, and Americans are suffering because of it- so work on Krysten Sinema and Joe Manchin and get rid of it. And then pass real, changing reform. Address the COVID 19 pandemic with substantial legislation, pass voting reform, protect reproductive rights, workers’ rights, immigrants’ rights, enact climate change legislation, address police violence and prison reform and dozens of other issues that the Democrats ran on. With the filibuster gone, it would still not be easy, but it would no longer be impossible. Do not wait for bipartisan support- effect real change now rather than trudging through a four-year standoff. It is time to use the nuclear option and put an end to a tradition that stands in the way of progress.  

Sources:

https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm

https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm

https://www.rules.senate.gov/rules-of-the-senate

https://www.senate.gov/reference/reference_item/American_Senate.htm

https://www.americanprogress.org/issues/democracy/reports/2019/12/05/478199/impact-filibuster-federal-policymaking/

https://www.senate.gov/legislative/cloture/clotureCounts.htm

https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/

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