Filibuster

The Filibuster and the Shutdown

~ R. Stanton Scott ~ Leave a comment

Recently I’ve seen a lot of posts on social media blaming Democrats for the federal government shut down. Most posters make two claims: first, that Democrats refuse to vote for passage of a continuing resolution (CR) because they’re holding out for money to fund health care for illegal immigrants. They also claim that Republicans cannot end the shut down without Democratic votes because passing a CR requires 60 votes and Republicans have only 53.

These claims are both false. First, Democrats reject a continuing resolution that implements funding legislation in the Big Beautiful Bill because that budget ends subsidies for the Affordable Care Act and changes qualification requirements for Medicaid. Together, these policy changes have the practical effect of ending health insurance coverage for millions of Americans. While it is true that Medicaid covers emergency, life-saving care for everyone who presents at an emergency room with a health issue that threatens their life, immigrants here illegally do not qualify for either Obamacare or Medicaid generally, and nothing in the Democratic demands would ensure general health insurance coverage for people who live in the US without the proper documents.

More importantly, passage of a continuing resolution does not depend on Democratic votes. To explain this I’ll start with a discussion of the filibuster and cloture rule, and I’ll begin with some history. The key point is that Rule 22 of Senate Procedure is not a Constitutional or statutory requirement. This is not an old rule, and it has been changed many times. 

Originally, both the House and Senate had a rule called “the previous question,” which allowed a simple majority to end debate and move to a vote. In 1806, the Senate revised its rules and eliminated the previous question rule. This left the Senate without a way to end debate and force a vote, which worked for a while under informal norms but eventually Senators realized they could hold up Senate action by talking endlessly, and in 1837 Senators used a filibuster for the first time to block action on censure of Andrew Jackson. Filibusters were born as a procedural mistake.

Over the following decades, senators used it sparingly but strategically—usually to protect the interests of the powerful: slaveholders before the Civil War, segregationists afterward – but eventually it became a serious problem. Not only did a filibuster hold up action on specific legislation, it held up the Senate completely, because under its rules it could not table a motion and move on to other legislation. When a minority of Senators blocked Woodrow Wilson’s plan to arm merchant ships in 1917, the Senate created a way to end debate: Rule 22, or the cloture rule.

Originally, cloture required a two-thirds vote of all senators—not just those present. That’s a supermajority of 67, whether or not all Senators are present for the vote. This high threshold allowed segregationists to use the filibuster to kill more than 200 anti-lynching and civil rights bills. And yes, these segregationists were Democrats, but times changed. I’ll get to that in a future episode.

The Senate lowered the cloture threshold from two-thirds to three-fifths—60 votes – in 1975. The same rule change allowed Senate business to continue after it sets a filibustered bill aside. This greatly reduced the incentive for compromise, because Senators who wished to move on other legislation no longer had to make a deal on the filibustered bill to move on to their priority. This also made the system less transparent because Senators no longer had to stand on the floor of the Senate and speak to continue a filibuster.

The good news is that Rule 22 is not carved in stone. It’s a parliamentary rule that senators can modify by majority vote. Yes—a simple majority.

Formal change of Senate rules that would eliminate the filibuster or specify which votes require cloture, for example at the beginning of a session, requires 67 votes. That won’t happen any time soon.

But Senators who want to change the rule for specific bills or nominations can easily do so simply by challenging the Chair’s ruling that cloture is required for a particular bill or vote. If 51 Senators vote to override the Chair, Rull 22 does not count for that vote. This makes the Republican pathway for reopening the federal government very simple. Hold a vote in the Senate, have a GOP member challenge the ruling of the Chair when he/she announces the no-cloture result, and then override that ruling. 

Easy-Peasy passage of a CR with 51 votes. This is how the Senate lowered the threshold for presidential appointments in 2013, Supreme Court nominations in 2017, and debate time on judicial nominees in 2019. The same mechanism could be used tomorrow to reform or eliminate the legislative filibuster.

The filibuster persists in the government shutdown case for several reasons. One is that conservatives are fine with closing government because they think it hurts them through regulation and taxes, though they run quickly to a government Court when they have a contract dispute (a key reason for creating a strong Federal government in the first place, by the way: contract enforcement). 

More generally, the filibuster persists because the rule empowers Senators from low-population states – who represent about 20% of the US population – to block popular legislation regarding protection of Federal lands, regulation of extraction industries and other polluters, and civil rights protections (yes, still a thing), among other interests. 

The Senate as an institution is anachronistic and anti-democratic, and that is by design. The filibuster makes things worse and should be ended. Senate Republicans can open government tomorrow simply by changing the rules just for this case and end the shutdown.

Why they don’t is another question.

Foggy Bottom Line Podcast Episode 9: Government Shutdown

~ R. Stanton Scott ~ Leave a comment

The US Government has been shut down since the Federal fiscal year ended on September 30. In this episode we talk a bit about the history of shutdowns and note that this is the first one that happened when one political party, in this case the GOP, controls all branches of government. We also discuss the budget process a bit and note that Congress has not been able to pass an actual budget for some time, and the government has operated for years on Continuing Resolutions to fund the government at current levels. We also note that the GOP could end this any time they like by killing the filibuster for budget or CR votes so they could pass something by majority vote.

The Epstein thing also came up.

You can find us on YouTube at this link and on Spotify here. Please take a look, subscribe, like, comment, and let us know how we’re doing.

Shutdowns and Filibusters

~ R. Stanton Scott ~ Leave a comment

I see a lot of social media posts from the right blaming the Democrats for the shutdown, including a comment on a LinkedIn post claiming that Democrats forced a shutdown because they wanted to cut federal funding for rural hospitals and redirect it toward health care for non-citizens.

If this LinkedIn account is genuine, you must respect this guy’s background. But if he really believes this is true, he pays little attention to how government works and even less to politics. This is easily the most egregious disinformation, if not outright lie, I’ve seen on LinkedIn – and that’s a high bar.

Yes, Republicans want you to blame Democrats for their failure to pass a continuing resolution (CR) funding the government and the resulting shutdown. They also want you to think Democrats did this because the CR does not include money to provide health care for illegal immigrants.

This is not what happened. Democrats refused to pass a cloture resolution (more on that later) that would allow a vote on the CR because the “Big Beautiful Bill” cuts funding for Affordable Care Act (ACA) subsidies and Medicaid. Democrats want this funding restored so that working Americans who get health care through the ACA won’t see their health care costs rise to unsustainable levels, and so that poor Americans, mostly Seniors in nursing homes and children in poor families or with disabilities, would not lose coverage. Cuts to Medicaid have already caused rural hospitals and clinics to close, but Democrats want to stop this, not use it to pay for immigrant health care.

Should Republicans agree to restore this funding, Democrats would vote for cloture, end the filibuster, and allow passage of the CR in the Senate (Republicans in the House have already passed it). A filibuster is a somewhat complicated Senate rule that allows 41 Senators to block legislation, including budget votes, simply by filing that intent. Once upon a time Senators had to hold the floor to continue a filibuster, but they got lazy and made it easy on themselves by changing the rules. Today, simply announcing the intent does the trick.

The key thing to know about the filibuster, besides the 60-vote requirement, is that the Constitution does not require it, nor does Federal law. This is a simple Senate rule, which 51 Senators could change at any time. It was originally designed to require different factions to compromise and write legislation that 60 Senators could support, rather than a simple majority. It had that effect, when segregationists used it to block voting and equal rights laws they saw as extremist, and it has that effect today when budget hawks want to cut social infrastructure spending.

In any event, this means that if Republicans, who hold a 51-49 majority in the Senate, wished to end the shutdown they could make this happen simply by changing the rules so that budget or continuing resolution votes cannot be blocked in this way. They have already done this to make it easier for them to approve Cabinet and Court nominations over the objections of Democrats, so ending the filibuster for budget votes would not set a new precedent.

Why they don’t is a good question. Could be that conservatives just hate government so much that closing it looks to them like good policy (except for ICE and the military, I guess). Perhaps they want to use the shutdown to achieve other goals, such as making workforce cuts DOGE didn’t get to, before they end it. Some have speculated that if they brought Congress back to Washington to vote on the shutdown they would have to seat Adelita Grijalva (D-AZ) who just won a special election in Arizona. Seating her would create a majority in support of releasing the Epstein Files.

In any event, Democrats have indeed refused to vote for the Republican budget in its current form. They did this because they want health care funding restored. But this does not mean they are to blame for the shutdown. Republicans could end it whenever they want, and it’s time they – and their supporters – own that.