What is the filibuster and how has it saved us from the brink?
That is next.
Hey, welcome back to the Barry Ferrer Show. Glad to have you with us.
I hope you're doing really well.
You know, the Democrats are mad.
They can't get some of their radical legislation passed, so they want to change the rules.
Rule 22 has come to be known as the filibuster.
It's one of the primary tools in the Senate.
It's used to allow for the minority to delay things.
That's very frustrating for the majority, but it's been used by both parties.
When the Constitution enumerated all the powers of the Congress in Article I,
it was pretty clear, and is, that the House of Representatives was designed to be closest to the people.
They have a smaller territory than a senator, and they have to run for re-election every two years.
And that's good and bad.
The good part is that they are able to be very responsive to the people in their district.
The bad part is that they can be led by the passion of the moment.
And sometimes, upon further reflection, that passion might not be in the best interest,
even of their own district, upon further reflection.
So, as part of our constitutional republic's design, the House can pass something by a simple majority.
They can respond in the moment.
The Senate was designed to be more deliberative, to debate more.
They have staggered six-year terms, and they represent the whole state.
They have to be five years older than a House rep to even qualify.
The Senate can take what the House sent over in a flash, and then subject it to a different kind of evaluation.
They can give it a more considered analysis.
So, what is the origin of this thing called the filibuster?
Well, back in 60 B.C., there was a Roman senator named Cato.
And he spoke until nightfall to obstruct a measure that he thought was bad.
The Roman Senate had a rule that all business had to be concluded by dusk, kind of part of their transparency rule.
So, when he made these long-winded speeches, he successfully delayed the vote, pushed it into the next day.
And he did this twice.
Julius Caesar was not happy about it, didn't like it.
But it did create a temporary delay in the legislative process.
Now, over the years, countries have adopted some form of that capability to delay things.
And if you have a republic or a democracy, they allowed for some rendition of a legislative delay tactic in most cases.
The United Kingdom, for example, calls their filibuster a talked-out.
I mean, I know they invented the language and all, but that doesn't seem all that inspired.
Anyway, labor has stalled conservatives.
Conservatives have blocked labor.
And they've done so with their talk-out.
Now, you go to Australia, and it's effectively forbidden.
You only get a certain amount of time to make your case.
But you come all the way to Canada, and the filibuster concept has been used many times, a number of times.
In the United States, the actual word is not part of the Constitution.
However, in Article I, Section 5, both the House of Representatives and the Senate may determine the rules of its own proceedings.
And that's where the debate and delay proceeding, among other things, are derived.
The rules are critical. I mean, how do you appoint a chair?
How do you recognize a person?
So, in the first session of the Senate in 1789, they approved 20 Senate rules, a bunch of them.
Some of these are really good.
In this original packet, one rule said you got to pay attention to the guy on the floor.
No member shall speak to another or otherwise interrupt the business of the Senate or read any printed paper,
kind of like the equivalent of looking at your iPhone today,
while the journals or public papers are reading or when any member is speaking in any debate.
Rule 19 is kind of another courtesy one.
It says that no senator in debate shall directly or indirectly, by any form of words,
impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.
Wow. You couldn't blast, and you can't, you're not supposed to, blast another guy just because you disagree with him.
You can't resort to accusing him of bad motives.
You can't call him a racist or something naughty.
You have to win on the merits of the debate.
Now, since then, those original...
20, there have only been seven general revisions of the Senate rules and the first major revision
came in 1806 when Rule 22 came into effect.
Eventually you get to the concept of debate and delay and this is what the Senate has
to ask.
Is it the sense of the Senate that the debate shall be brought to a close?
So you got a guy kind of filibustering and what happens?
So as amended in 1975, if three-fifths of the Senators agree, then they can shut down
the debate and then go ahead and vote.
But if the measure is to amend the Senate rules, they've got to have even more, two-thirds
of the Senators present and voting.
This Rule 22 has been nicknamed the filibuster.
It gives the minority a lot of power, it forces the majority to negotiate with them.
The founders believed this rule would help maintain the concept of a constitutional republic
versus a pure democracy.
In fact, today's defenders of the filibuster call it the soul of the Senate.
Any one Senator can delay things by taking the Senate floor and talking as long as he
wants.
In fact, she can talk on any topic she wants.
You can get up there and read license plates from the Department of Motor Vehicles.
One Senator can slow everything down up to a point.
This whole delay tactic can get shut down if you've got 60 Senators that agree to shut
it down and that's called cloture.
That keeps that lone wolf, goofy guy from dominating everything.
His case has to be strong enough to bring 40 other Senators along with him.
The filibuster was established in 1806 but not first used until about 20 years later
and not used often until the 1970s.
But when it has been used, it's so potent that the mere threat of a filibuster forces
the majority leader to move on to something else or negotiate.
Otherwise it just takes up Senate floor time.
The filibuster's not a mistake.
It's a deliberate Senate rule.
It's an early one too.
It wasn't supposed to be used willy-nilly.
John Adams early on when the Constitution was developed said,
Our Constitution was made only for a moral and religious people.
It's wholly inadequate to the government of any other.
You had to have some built-in constraints.
The rule, this rule, does require some decorum.
The notion of Rule 22 was to allow the minority a vote and a voice and to require the majority
to compromise with them.
Initially this could impact everything, appointments, legislation, etc.
It wasn't supposed to be used for every little thing though.
But it does provide an intentional built-in structure to force the Senate toward a type
of legislative behavior, an attitude toward one another.
And in order to change a Senate rule, you've got to have 67 Senators agree.
So in theory, you're never going to realistically be able to change that filibuster rule.
I mean, you only need 34 of the 100 Senators to say no-go.
We're in the minority and we don't want to change the rule.
And with the staggered schedule of the Senate and the six-year term component, there's really
rarely a time when one party doesn't have at least 34% of the Senate.
So Rule 22, which explicitly says you can't change that rule without a supermajority,
should never have been able to be changed.
Unless you look at Rule 20 through a very naughty lens.
And that's what happened in 2013.
So from 1806 to 2013, the Senate changed very little substance.
They clarified cloture.
They added some exceptions.
But in the context of the full Senate agreeing to those clarifications, everybody agreed.
Not in the Senate of 2013.
Democrats were in charge of the Senate at the time, and Obama was president.
The majority was quite frustrated by the ability of the Senate to slow them down, particularly
with some of their more radical, lefty appointments.
The Democrats liked Rule 22 when they were in the minority.
But they didn't like Rule 22 when they were in the majority.
So the lawyers who had become Senators found a loophole, and in 2013, the Democrat-controlled
Senate used a technical procedure to vote 52-48 to lower the threshold.
Three Democrats, Senators, and all the Republicans opposed the measure.
A rule change is supposed to require pretty broad agreement.
The idea is that at least 67% of the Senate is supposed to agree on changing the procedures
of how the Senate's going to work.
But they pulled it off with only 52.
Now how'd they do this?
They used a clever parliamentary procedure.
Rule 20 is titled, Questions of Order.
It was originally put in place to allow the guy who knew all the rules to rule on the
rules.
To bring clarity.
He's the President Pro Tempore.
He's a Senator.
He functions in limited ways as the President of the Senate, kind of temporarily, when the
Vice President, who's the actual President of the Senate, is not there, which is most
of the time.
But when he rules on a rule, he can be overruled by a vote of the whole Senate.
So, Rule 20, which was established
out the gate in 1789, the
last one of that first batch, was supposed to give the Senate some
accountability on an administrative clarification
of a procedure. Now here's the real clincher. When the majority leader raises a point of
order
and is told by the President pro tempore that his point of order is a violation of
a rule,
that majority leader can force the question to the whole Senate.
Now this was designed to keep the presiding officer in check.
And when the majority leader challenges the pro tempore, Rule 20 says that when
that happens there can be no debate.
The whole Senate votes on the point of order right then. Rule 20 was in place
17 years before Rule 22.
It was simply intended to clarify things,
give a mechanism for that, provide the whole Senate with a mechanism to vote on
a clarification or interpretation of a rule.
Rule 20 was not intended to be used to
overrule a rule, especially a rule that came 17 years later.
And particularly since that rule explicitly states that you can't
change it unless you have two-thirds of the Senate
in agreement. Yet the sneaky,
slimy, manipulation of the procedure
worked. The head of the Senate at the time was
Democrat Harry Reid. And here's how it actually came down. Reid says,
I raise a point of order that the vote on cloture under Rule 22 for all
nominations other than for the Supreme Court of
the United States is by majority vote.
So here he's basically proposing to change Rule 22 by point of order
versus this 67 percent of the Senate. The president pro tempore of the Senate
said, under the rules the point of order is not
sustained. So even this guy is a friend of the scheme to help his fellow
Democrat. The presiding officer is saying what everybody already knows.
Rule 22 says you can't change it to a majority from a supermajority,
but he also knows what's coming next. Then Reid said,
I appeal the ruling of the chair and ask for the yays and nays.
So according to Rule 20, there has to be an immediate vote on whether or not the
procedure was legit. So all the Republicans and three
Democrats said no, but that only came to 48. So 52 Democrats
voted to overrule the chair. So now the president pro tempore has to
announce the result of this never before used not so honest procedure.
The decision of the chair is not sustained.
So he's basically saying I've just been overruled by all y'all.
Wink wink. So the president pro tempore has to close this whole thing out and
clarify what just happened. So he says, under the precedent set by the Senate
today, November 21, 2013, the threshold for
cloture on nominations, not including those to the Supreme Court of the United
States, is now a majority. So bam,
just like that, they contorted Rule 20 to overrule the specific intent of Rule
22. And they did it without changing any one
of the words of Rule 22. Conniving sons of a guns, aren't they?
Aye, aye, aye. Anyway, executive and judicial nominees would now sail through with
just a thin majority. So they got Obama's federal judges
and all the executive appointments he wanted
approved. Notice this maneuver did not include the Supreme Court.
At that time, just a few years ago, that would have peeled off
more of the moderate Democrats and they wouldn't have gotten it through.
They all knew it was shameful, but they reasoned that it was so complicated the
average voter wouldn't take the time to understand it.
But it was brazen enough to include all the appointments. I mean, for goodness
sakes, George Washington's 1795 nomination for
chief justice was rejected by the Senate. Yeah.
And Washington was elected unanimously. But his guy got stopped by the Senate,
and that was before the filibuster was a specific rule.
George had to move on. I mean, that's the way our system is supposed to work.
Supposed to respect it. So what do you think happened just a few years later?
Well, the Senate became controlled by Republicans.
They were frustrated that the minority Democrats filibustered a qualified
Supreme Court nominee by the name of Neil Gorsuch. So,
in 2017, the majority Republican Senate, partly with a
you started it rationale, used the same Rule 20 technique to reduce the
threshold to a simple majority for a Supreme Court justice. So, to those
liberals who want to get rid of the remainder of the potence of the
filibuster, recall that things always come around to the other side.
Because of the initial use of what
became known as this nuclear option, the next Republican president got more federal judges
approved than any other one-time president in history.
And he appointed three conservative Supreme Court justices, all who sailed through on
thin majorities.
Democrats can thank themselves.
Now I'm glad for the total result on the courts, but I'm not for how we got there.
The Democrats should never have weaponized the filibuster to block solid and qualified
appointments, which they started doing way back with Bork in 1987, but that's a whole
nother story.
So what's left with the filibuster?
Major legislation.
A filibuster can still block that, and that is what has happened these past two years
since the Biden era.
The Democrats passed a massive $1.9 trillion bill, which bailed out blue states for bad
management, increased the national debt, gave handouts to special interest and exacerbated
inflation.
They did that through reconciliation.
But they wanted more, and that could only be handled through legislation.
They wanted to radically change how our elections are conducted, to nationalize them, neuter
our constitutional republic, and make it easier for ineligible voters to cheat.
They wanted to discriminate against people of faith and allow for legislation to disrupt
the nuclear family, implementing a system-wide social justice shock.
They wanted unfettered ability to print money.
They wanted a plan that would increase taxes on the most productive small and mid-sized
businesses.
They wanted to expand centralized control at every level, socially and medically, and
use Marxist techniques to impose price controls, and manipulate industry toward aggressive
and unproven climate control goals, and expand their racism and gender confusion to every
facet of American life.
And all this, if their legislation went through, would have been enforced by the feds.
But that's not all.
They wanted to abolish the effect of the Tenth Amendment.
They wanted to fundamentally reorder the American system.
Through this scheme, they wanted to use the states as captive pawns to implement their
crazy progressive ideas.
They called it Build Back Better.
It probably would have cost $5 trillion.
At the end of the day, it was an extreme way to change the United States from a constitutional
republic to a socialistic nightmare.
Well, these enormous legislative initiatives were stopped, thanks to the filibuster.
So the Democrats got super mad, and they tried to end the filibuster on a party-line vote,
January 19, 2022.
But thankfully, Senator Manchin, a Democrat from West Virginia, and Senator Sinema, a
Democrat from Arizona, sided with the Republicans, and on a 52-48 vote, the filibuster is still
intact.
Thank you, Senators.
We sure appreciate that.
The role of the filibuster the past two years has been to stop major legislation that honestly
would have killed the republic, would have wiped out the electoral college, all kinds
of things that are in the Constitution.
To my progressive friends, you don't want to get rid of the filibuster.
It's not supposed to be easy for government to do major things.
When Republicans are back in power in a few months and likely take the presidency in 2024,
do you want them to have full, unfettered power?
At the end of the day, there are good reasons to keep the rule intact.
The Senate should not change the meaning of the rule, nor should it remove it.
I've got like seven reasons.
I'll roll through them real quick.
If the Senate removes the filibuster, it will eliminate the framers' design that the Senate
be a consensus-driven body.
The intent was for it to move deliberately.
The filibuster allows for the minority party to force delay through debate unless there
are 60 votes to end the debate.
This is an intentional tool of negotiation to provide leverage for the minority party.
Number two, if the Senate kills the filibuster, it will turn the Senate into another version
of the House where raw majority rules, where compromises are not required, and where the
passion of the moment and the current majority can overcome reason and sound judgment.
Number three, if the Senate eliminates the filibuster, it will further corrode confidence
in the American way of governance.
Just a few decades ago, the Senate approved cabinet officials, federal judges, and Supreme
Court justices with a wide margin.
Now they do so with an angry party-line vote.
If the Senate ends the filibuster for what's left, the major legislation that it can prevent,
it would create that same type of acrimony for legislation, not just appointments, and
that will further erode public trust.
If the Senate redefines the filibuster, number four, it will remove the constraint on majority
power.
Democrats delayed and stopped numerous Republican initiatives when Republicans were president.
Republicans have done the same when Democrats were president.
in power. If we eliminate the filibuster, it eliminates the tool of the minority to
be a check on raw legislative power. What happens when you prevent that is you keep
the United States from becoming too radical. If we eliminate the filibuster, the radicals
from both parties will have their way. Number five, if the Senate breaks this Senate rule,
it will hurt the institution itself. Major legislation that does not have broad bipartisan
support is not good. The filibuster helps keep the USA a government of the people and
by the people. And it honors the separation between the House and the Senate that was
designed in the Constitution in article one. If the Senate changes rule 22 in the current
environment, it's an affront to roughly 50% of the people in the United States. If the
intent of the filibuster was to effectively give 41 senators power, then most assuredly
50% of the Senate should have their voices heard. And finally, number seven, if the Senate
breaks the filibuster rule, it will set up a mechanism of revenge legislation. Whichever
parties in power, they will no longer need to consider the minority party or any of their
ideas. The reality is that government can easily become corrupt and oppressive. That
exists all over the world today and all throughout history. There are tons of examples of governments
that have had way too much control and the consequences are horrible. And at this time
right now, 50% of the Senate was elected by people who did not want to have the Democrats
in the majority. It only takes one more Republican senator for the majority to swing back to
the Republicans. It's kind of funny how just a few years ago, the Democrats went on and
on and on and on and on about the importance of the filibuster. Back then, they were in
the minority. Yet the filibuster doesn't apply to everything. Congress's annual budget
reconciliation process requires only a simple majority. And it can't be filibustered. Nor
can the trade agreements or military base closures or arms sales. You know there's 161
exceptions to the filibuster. So you can just pass those without supermajority rule. But
major legislation is still subject to rule 22, the filibuster. Let's keep it that way
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