A Case for the Filibuster – Federal Spending Requires an Annual Bipartisan Conclusion

About the Author: Matthew Calabrese is a first-year law student at American University Washington College of Law. Before law school, Matt served as a government relations professional for Scripps Institution of Oceanography, UC San Diego, where he advocated for environment, energy, science, and defense research appropriations and policy issues. Matt is a graduate of the University of Arizona and is interested in pursuing a career in natural resources or energy law, or a public policy-related field.

 

Congress has a ticking yet familiar deadline it must meet, December 11, when the current continuing resolution expires.[1] If both chambers of Congress and the White House fail to reach an agreement on fiscal year 2021 appropriations before then, the federal government will “shut down” in mid-December.

Article I, Section 9, Clause 7 of the U.S. Constitution provides Congress with one of its most significant powers, the “Power of the Purse.”[2] This constitutional power plays out in many ways. Yet, in a procedural sense, it provides that every fiscal year Congress must pass, and the President must sign, spending legislation consisting of twelve appropriations bills into law – one for each Appropriations Subcommittee.[3] If Congress fails to pass spending legislation consisting of all twelve appropriations bills by the start of the next fiscal year on October 1, Congress then, to avoid a full or partial government shutdown, is typically forced to pass a continuing resolution. A continuing resolution continues spending based on the previous fiscal year’s level, generally kicking the can down the road until an agreement can be reached.[4]

Because of the Senate filibuster, appropriations must reach a bipartisan conclusion for passage. This offers the minority party one of its most effective tools and is also the main reason for relative constancy in federal spending. However, in today’s divisive political environment, passing these bills, or any legislation, can prove difficult because it requires the minority and majority parties to compromise.

The Senate filibuster is arguably one of the most famous and formidable tools of the minority party in Congress. Despite its fame, the filibuster’s power is not derived from any Senate rule; rather, it originates from a lack of rules to limit debate. Senate Rule XXII does not permit the Senate to consider most legislation without debate. A successful cloture motion is needed to end debate, requiring an affirmative vote of three-fifths, or sixty senators.[5] In 2020, getting sixty votes on anything is a tall order. However, this threshold used to apply to more than just legislation; it also previously applied to executive branch and judicial nominations until 2013 when Senate Democrats enacted the “nuclear option,” lowering the threshold to a mere simple majority for nominations, except the Supreme Court.[6]

The “nuclear option,” in practice, is a nuanced Senate procedure, which entails changes to Senate precedent. Senate precedent lives alongside the Senate rules and can act as binding. Because changing the Senate’s rules requires a more stringent two-thirds vote, or sixty-seven senators, Democrats and Republicans use this procedure, otherwise known as “reform by ruling,” because it only requires a simple majority for passage.[7] In 2013 the Democrats used this maneuver to confirm a slate of President Obama’s judicial and executive branch nominations,[8] and in 2017 Senate Republicans used the maneuver to extend the simple majority vote precedent to confirm President Trump’s nomination of Neil Gorsuch to the U.S. Supreme Court.[9] These nominations would almost certainly have failed if not for the abolition of the filibuster for nominations.

In 2018, Republicans, including President Trump and Republican House members, suggested going further and getting rid of the filibuster for all legislation. Then House Freedom Caucus Chairman, Rep. Mark Meadows offered an even more targeted measure: ending the Senate filibuster for only appropriations bills.[10] Further, in the lead up to the 2020 election, prominent Democrats, including former Majority Leader Harry Reid,[11] Senator Elizabeth Warren,[12] President Obama,[13] and others, signaled their support for eliminating the filibuster altogether should Democrats win control of the chamber. However imminent the possibility of ending the filibuster was, the results of the Senate’s 2020 elections and makeup of the Senate in 117th Congress have rendered this debate moot for now.[14]

Nevertheless, without wading into Senate Rule XVI issues, which generally prohibits appropriations bills from altering existing law, any filibuster abolition proposal should exclude appropriations bills.[15] Federal funding is too important to risk partisan inconsistencies to funding levels from election to election. Inconsistencies in funding can have severe short term and long term consequences and can take years to fix. On a bipartisan basis, Congress is currently forced to approve spending measures that fund activities for the whole of government. The American people and functioning society require consistency in funding to ensure stability, prosperity, health, safety, and security. For instance, in 2017, Republicans held a simple majority in the House of Representatives and the Senate and controlled the White House. Without a filibuster on appropriations legislation, the Republicans could have decided to end funding or re-shape the federal government in any number of ways. Instead, Senate Democrats were able to assert their minority party rights to fund the government with consistency. This led to appropriations spending agreements, which included wins and losses for both parties, but more importantly, included a victory for the consistent, functioning, good government. While there may be legitimate arguments to end the filibuster for all other legislation, appropriations legislation should still be forced to find a bipartisan conclusion.

 

[1] Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, 134 Stat. 709.

[2] U.S. Const. art. I, § 9, cl. 7.

[3] See James Saturno, et al., R42388, The Congressional Appropriations Process: An Introduction, Congressional Research Service 12 (2016), https://www.senate.gov/CRSpubs/8013e37d-4a09-46f0-b1e2-c14915d498a6.pdf.

[4] See Id. at 13.

[5] See Senate Rule XXII, United States Senate, available at https://www.rules.senate.gov/rules-of-the-senate.

[6] See Burgess Everett & Seung Min Kim, Senate Goes for ‘Nuclear Option’, Politico (Nov. 21, 2013, 5:09 PM), https://www.politico.com/story/2013/11/harry-reid-nuclear-option-100199.

[7] Molly Reynolds, What is the Senate Filibuster, and What Would it Take to Eliminate it? (Sept. 9, 2020), https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/.

[8] See Everett & Kim, supra note 6.

[9] See Matt Flegenheimer, Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch, New York Times (Apr. 6, 2017),https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html.

[10] See Lindsey McPherson, House GOP Has Message for Senate on Shutdown: Nuke the Filibuster, Roll Call (Jan. 20, 2018, 6:00 PM)) https://www.rollcall.com/2018/01/20/house-gop-has-message-for-senate-on-shutdown-nuke-the-filibuster/.

[11] See Lisa Mascaro, Reid Says Biden Should End Senate  Filibuster After 3 weeks, Associated Press (Oct. 24, 2020), https://apnews.com/article/election-2020-joe-biden-filibusters-legislation-only-on-ap-d85c3f63df1c6e71f39d2f7063503d81.

[12] See Should Democrats Eliminate the Senate Filibuster the Next Time They Control the Chamber?, Washington Post, https://www.washingtonpost.com/graphics/politics/policy-2020/voting-changes/eliminate-senate-filibuster/.

[13] See Maggie Astor & Shane Goldmacher, At Lewis Funeral, Obama Calls Filibuster a ‘Jim Crow Relic’, New York Times (July 30, 2020), https://www.nytimes.com/2020/07/30/us/politics/john-lewis-funeral-barack-obama.html.

[14] See Ordain Carney, Manchin Shoots Down Chance That Senate Democrats Nix Filibuster, Expand Court, The Hill (Nov. 9, 2020, 8:47 PM), https://thehill.com/homenews/senate/525236-manchin-shoot-down-chance-that-senate-democrats-nix-filibuster-expand-court.

[15] See Senate Rule XVI, United States Senate, available at https://www.rules.senate.gov/rules-of-the-senate

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