The U.S. Constitution, Article I, Section 5 states, “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” Expelling a member is the only constitutionally mandated requirement for the Congress to use more than a simple majority to set its own rules. (Notwithstanding impeachment and amendment, but within the chambers themselves.)
The House of Representatives currently uses the original rules bringing votes on bills to the floor, called “ordering the previous question.” The Senate, however, abandoned the “previous question” motion in 1805, when Vice President Aaron Burr (the one who killed Alexander Hamilton in a duel) decided it was superfluous.
Since the Senate is a much smaller chamber than the House, without a simple majority “previous question” motion, debate could continue indefinitely–theoretically, forever. There were still very few filibusters in the sense that we have them today. When senators attempted to restore the “previous question” rule, they tended to get (you guess it) filibustered.
It was only during World War I, when progressive Democrat, President Woodrow Wilson forced the issue as a “wartime measure” that the Senate adopted Rule 22, requiring a 2/3 majority for cloture. It’s never been repealed, although in 1975, the Senate lowered the bar from 66 to 60 (3/5 majority).
There is absolutely no reason that a filibuster, or supermajority for cloture is needed in the Senate. There are abundant reasons why it’s bad for America. Here’s a few.
It rewards party whipping and instability.
You can see how Democrats wrangled 41 votes against Judge Gorsuch, just to force Republicans to “go nuclear” or go home. There were a few brave Democratic senators who broke from the whip, but in general, on important issues, senators are more tied to their party than they’ve ever been.
That’s not how the Senate, as an institution, is supposed to behave. Senators are supposed to be loyal to their state, then their party. The House of Representatives is the “people’s house.” The upper chamber was designed to be more stable, but it’s not.
It encourages polarization.
When the minority party can simply block legislation by forcing a supermajority, with or without the dramatic speech, the parties are not being forced to work together for bipartisan solutions. The party in power is either shoving its will down the throat of the minority, or the minority is holding bills or nominations hostage.
The repeal of supermajority cloture for federal judges is actually a good thing, and getting rid of it for SCOTUS justices is also good. But until Rule 22 is completely repealed, senators will line up far apart on every issue more and more, because of the whipping and dealmaking within the parties themselves.
It’s bad for democracy.
The founders required supermajorities for very specific events: expelling a member, convicting a president after impeachment, and amending the Constitution. Those are super-important issues requiring a supermajority. But with Rule 22, practically everything in the Senate could require a supermajority. It cheapens the really important things when any bill could potentially be held hostage to a filibuster.
Our country is a republic, not a straight democracy, but within the walls of the House and Senate chambers, our representatives should strive to at least pretend they adhere to democratic (small “d”) rules and principles. Supermajority cloture on regular bills is anti-democratic. The House doesn’t allow it, and neither should the Senate.
Get rid of Rule 22
Since the filibuster and “going nuclear” are on the table, why not just amend Senate rules and get rid of Rule 22 completely. Replace it with a rule allowing a simple majority motion to “order the previous question.” Then we don’t worry about reconciliation votes, confirmation votes, amendments or cloture. When it’s time to vote, the Senate votes.
That’s how the House does it, that’s how the original Senate rules operated, and that’s how it should be.