The filibuster debate is back. What you need to know

Editor's note: This column, writter by former Governor Jim Martin, first appeared in The News and Observer, October 2, 2024

Recently, attention was drawn to one of those antique curiosities of American government that few understand and fewer support: the Senate “filibuster.”

Last week, Vice President Kamala Harris proposed to amend the Senate’s filibuster rule so it couldn’t obstruct passage of her most effective policy issue versus former President Donald Trump. She wants federal laws restoring the principles of Roe v. Wade to allow abortion in all 50 states. Whether it would provide an absolute “right to choose,” with no limitation on late-term abortion, is unclear.

In 2022, three Supreme Court Justices appointed by Trump enabled a 5-4 vote to overturn Roe v. Wade, holding that abortion was not a right protected in the Constitution, leaving it to political processes in states. This reversed a 1973 Supreme Court finding (7-2) that criminalizing abortion violated an implied protection in the “due process” clause of the Fourteenth Amendment. This controversy disturbs many on each side, while moderates prefer compromise.

Which brings us back to the filibuster. A quick history lesson: the filibuster dates back to 1837 when Senate Whigs blocked a vote to erase their earlier censure of President Andrew Jackson, a Democrat. Their blocking tactic: continue debate until Jackson’s allies gave up.

The Senate originally had a parliamentary procedure for “Moving the Previous Question” to close debate (aka “Cloture”), but dropped it in 1806, as it was rarely used. House Rules allow the Previous Question as a privileged motion, closing debate by a simple majority. After two centuries of fine tuning, Senate filibusters no longer depend on one senator holding the floor until he collapses. Today, 60 votes are required for Senate cloture to keep the people’s business moving along.

Disappointed advocates usually blame the filibuster rule when their most hallowed legislative objectives are stymied for lack of 60 Senators voting in favor. The opposing view treasures the filibuster as often the only way to prevent radical policies from becoming law without bipartisan input.

The objection is that the filibuster thwarts democracy. While the Declaration of Independence didn’t call for a pure democracy, some wish it did. Instead, it proposed that governments be established “deriving their just powers from the consent of the governed.” When asked about the new government, Benjamin Franklin described a representative democracy saying, “a republic, if you can keep it.” The U.S. Constitution provides only that “The United States shall guarantee to every State in this Union a Republican Form of Government.” Filibusters aren’t prohibited or protected.

In defense of the filibuster, Sen. Joe Manchin (I-WV) called it “the Holy Grail of Democracy.” That may be rhetorical excess, but the filibuster is clearly a barrier to passage of controversial laws with little or no input from the minority. With the two major parties so badly polarized, it might be a risky time to abandon the filibuster. If either party controlled both legislative bodies and the presidency, 60 votes for cloture would be the only thing left to favor compromise over radical ideology.

Can the filibuster be set aside for one specific proposal? Yes, with a majority vote at the opening of a new Congress to adopt a carefully crafted rule for that purpose alone. Would this set a precedent for waiving the filibuster for other issues? Yes, and that’s the danger.

As recently as 2013, Senate Democrats amended cloture to allow a simple majority to confirm President Obama’s nominations of cabinet executives and all federal judges except the Supreme Court. In 2017, when Trump became President, a Republican Senate majority extended this precedent to include confirmation of Supreme Court nominees. Each side shamed the other as “hypocrites.” The rest is history.

So, it can be done, as it was for key presidential appointments only. The question today is whether to open the Senate to decide abortion and other highly controversial policies by a simple majority of Democrats (or Republicans). Once released again, it may be impossible to put this genie back in its bottle.

Jim Martin, a Republican, was N.C. governor from 1985-93.