When President Joe Biden addressed the filibuster during his first press conference on March 25, most of what he said was either factually wrong or seriously misleading.
Both the Senate and House must end debate on a bill before it can vote on passage. In the House, the same number of votes—a simple majority—can do both. In the Senate, Rule 22 provides a two-step process for invoking cloture, or ending debate, if the two party leaders cannot agree informally.
First, sixteen senators sign a motion filed that asks a question about a particular pending matter: “Is it the sense of the Senate that the debate shall be brought to a close?” A cloture motion is nothing more than that, a question. It can be filed at any time, for any reason. Second, a vote on that motion two days later provides an answer to the question. If at least sixty senators vote yes, debate wraps up and the bill moves forward. If fewer than sixty senators vote yes, debate continues. That is a filibuster.
A failed cloture vote is the only accurate, consistent, objective way to define a filibuster. That is why every effort at filibuster “reform” has focused on the number of votes needed to invoke cloture under Rule 22. That threshold was two-thirds when the Senate adopted the rule in 1917, and it is “three-fifths of the Senators duly chosen and sworn” today. A filibuster occurs when such an attempt to end debate fails, preventing a final vote on passage.
Why the supermajority for cloture in the Senate? Checks and balances. This higher threshold should force the majority to deal with the minority, rather than ignore the other party, as happens in the House.
As a senator in 2005, Biden explained: “At its core, the filibuster is not about stopping a nominee or a bill—it’s about compromise and moderation.” The House is thus designed for action, the Senate for deliberation and moderation. The combination of these two different approaches in one legislative process keeps too much power from ending up in too few hands.
In 2005, Biden accurately described why extended debate has been the most defining feature of the Senate as a legislative body for more than two centuries. Obviously, no matter which party controls at any given time or which issues are on the legislative plate, extended debate frustrates the majority by empowering the minority. That’s the point; it’s the way the Senate is designed. Sen. Biden argued in 2005 that politics should be fought “within the strictures and requirements of the senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain.”
President Joe Biden apparently rejects Senator Biden’s position. The former claims that “there were a total of 58 eight motions to break the filibuster” between 1917 and 1971 and that “there were five times that many” in 2020 alone. But he’s padding the numbers by counting cloture motions as filibusters. This claim has several glaring errors. First, a cloture motion is not a “motion to break a filibuster.” To repeat, a filibuster occurs not at the beginning of the cloture process, when the question whether to end debate is merely asked. A filibuster occurs at the end of the process, when a cloture vote fails and answers that question in the negative.
Second, the filibuster is a tool of the minority. By using 2020 as his comparison and supposed proof that filibusters have exploded, Biden was laying the blame squarely on his fellow Democrats. They forced the Senate to employ the cloture process to end debate because they refused to do so informally, by unanimous consent.
Third, Biden did not mention that during the 1917-1971 period, only 16 percent of cloture motions passed. In other words, the Senate resorted to the cloture process when there were actual, serious disputes that required a more formal approach for the senate to do its work. In stark contrast, during the 116th Congress, 91 percent of cloture votes passed. This alone suggests that Democrats were instead forcing the Senate to use the cloture process because they could, as a tool to obstruct rather than further the Senate’s work.
Now we can see how the scheme really works. Democrats refuse to cooperate in the ordinary process of ending debate and scheduling votes on bills, forcing the majority to use the time-consuming cloture process instead. Now, Democrats decry the supposed filibuster explosion and say the practice must be abolished. That is the legislative version of the man who killed his parents and begs for leniency because he’s an orphan.
If any of this sounds familiar, it’s because Biden is following former Majority Leader Harry Reid’s playbook. In 2013, when they controlled the Senate, Democrats wanted to prevent Republicans from filibustering President Barack Obama’s judicial nominations. They padded the numbers and then claimed there was a filibuster “crisis” that had to be addressed. On Nov. 21, 2013, Majority Leader Harry Reid (D-NV), for example, claimed that half of all nomination filibusters had occurred during the Obama administration. Reid, however, was padding the numbers by counting cloture motions.
The truth was that, during the first five years of the Obama administration, the Senate took just twelve cloture votes on judicial nominations and six of them failed. Not hundreds, not even dozens, but six filibusters, a drastic decline from how Democrats earlier handled President George W. Bush’s nomination.
Biden is doing the same thing. Even if cloture motions could be counted as filibusters, Democrats were solely responsible for the spike last year that Biden now seems so concerned about. In fact, when Sen. Biden strongly defended the filibuster in 2005, the filibuster rate (percent of cloture vote failure) was more than three times higher than during the 116th Congress, when President Biden now says the filibuster was “abused in a gigantic way.” Only 9 percent of cloture votes failed during the 116th Congress, resulting in actual filibusters. This is the second-lowest level of filibusters in history, except for the Congresses when the senate took no cloture votes at all.
Counting cloture motions as filibuster equates ending debate with not ending debate. It equates allowing final passage votes with preventing them. And it explains why Biden can say that filibusters are a more serious problem even though they have declined significantly.
Oh, and the record for the lowest filibuster rate was set in the 115th Congress (2017-18). Democrats were responsible for that, too.
This piece originally appeared in The National Interest https://nationalinterest.org/blog/reboot/senator-joe-biden-vs-president-joe-biden-filibuster-problem-181336