The Filibuster

Relevant information for making a decision

senateI recently wrote on FB, about the vast amount of misinformation spanning the internet, especially by well-intentioned conservatives that voice their opinions without having the needed information to formulate the proper understanding of an issue. Trust me when I say this is a natural reaction to highly charged and important stuff, but when opinions are formulated based on misinformation and a lack of understanding, it can hurt the things we hope to accomplish.

I have always been about educating my friends to the best of my ability. I make every effort to read and understand things and then report back as to what I learned, hoping to build a valuable knowledge base amongst conservatives…..and if a liberal has a desire to learn…all the much better.

As you might have guessed by now, this is mostly about the recent debate about the proposed healthcare reform bill, backed by Trump and blocked in the House by the Freedom Caucus and some moderate members of the Tuesday Group. Over the past two weeks there has been much said and debated about the AHCA (American Health Care Act). I wrote hundreds of comments and made dozens of posts explaining the reasons why we should have gotten behind it as republicans. This is when I was bombarded with the misinformation I spoke about yesterday on my FB page. So I asked 5 questions that highlighted that misinformation. So here, I wanted to provide what I know about these issues and simply help others to understand. Here’s what I posted on FB:

“If there’s anything I have discovered over the last two weeks is that there is more mis-information out there than there are facts….this cannot be disputed. When I say misinformation, I mean the repeating, posting, and commenting on subjects that the commenter has little or no knowledge of the subject. It has been said that “opinions are like assholes, everybody has one!” But uneducated opinions can be dangerous.

What I would like to do is illustrate this idea with a series of questions. If you would just answer yes or no, without explaining, I would appreciate it. I will deal with the subject later….right now I just want to know how many of my FB friends will be honest in what they think they know I’ll start with just 5 questions….just write

Then place a Y or N next to the number. I will compile the responses, and then ask for some details. Here are the 5 questions:

1. Do you understand how a filibuster works, where it came from, and how it can be ended on a single vote and how it can be eliminated as a senate rule? (nuclear option)
2. Do you understand what regular order is, in the congress?
3. Do you understand reconciliation beyond the 51 vote provision?
4. Do you know the difference between majority rule and super majority rule?
5. As it applies to intelligence gathering do you know what the ‘gang of 8’ is?

My purpose is not to denigrate or embarrass just to educate…as is my role. If you feel you want to Google these things before you answer, that’s fine….you will be educated. I will explain these things next, at least what I know.”

I received a sufficient response to respond. Most troubling, however, was a response implying that Google is somehow a false source of information. It can be. But that said, Google is the greatest tool for learning mankind has ever created. Used properly, which is the key, one can learn anything they desire to learn, the information of thousands of teachers is at your finger tips.

Rand Paul
Rand Paul


So here’s what I know:
The filibuster was a tool that sort of creeped into the senate in the 19th century. It actually started as extending a debate in order to block further action on an issue. So to that end, a senator would talk and talk and talk, frustrating his colleagues until they went home, leaving the issue unsettled. At some point, someone decided there had to be a way to stop the debate. They came up with “cloture”. Cloture is a way to stop a debate. When cloture is called for, a vote is taken. At the beginning 2/3 (66) senators needed to vote yes to stop the debate. In 1975 two big changes were made to the rule (known as rule 22). They agreed to eliminate the need to speak continuously and they lowered the threshold to stop the filibuster to 3/5 (60). This is where it stood until 2013.  If One senator decides he doesn’t want an issue to be voted on, he simply declares a filibuster, and no vote can be taken, effectively stopping the issue from getting through congress. Which brings me to 2013 and one piece of misinformation. It is said that Harry Reid, the then leader of the senate, used the nuclear option to end the filibuster. Not completely accurate. The make-up of the senate in 2013 was 53-45-2. A clear democrat majority, but far from the 60 needed to stop a filibuster. Reid threatened to use the “nuclear option” (I’ll get to what that is in a minute). The issue was federal judges. At the time there were hundreds of Obama appointees, waiting for confirmation from the senate. The republicans were blocking all of them with a filibuster.

harry reid
Harry Reid

When Reid threatened to end the filibuster, the gang of 16 was created to stop Reid, yet get those federal judges confirmed. Since there were 8 democrats and 8 republicans in the gang of 16, if they agreed, they could stop a filibuster and get the judges confirmed. If the 8 republicans voted with the democrats they could stop the filibuster. If the 8 democrats voted with the republicans they could defeat any nominee from being confirmed. So an agreement was struck. The filibuster would be changed. All appointments made by a president, except to the Supreme Court, would no longer be able to be filibustered. A simple majority was to be used. So over 300 federal judges were confirmed that were appointed by Obama. But the filibuster was saved and still available for regular legislation and the selection of Supreme Court justices.  The nuclear option was avoided.


So what is the nuclear option? In the constitution under Article 3, it gives the senate the power to “make its own rules”. The filibuster rule, 22, is one of those rules. But can the senate make any rule it wants? This is a debatable point, but I contend that they can’t. Any rule certainly would have to comply with the constitution itself. For example, could the senate make a rule that said only men could be on committees? Obviously this would be contrary to the 1st and 14th amendments, and would be unconstitutional. So the so-called nuclear option, or as it is also called the constitutional option, is the declaring of the filibuster, by the president of the senate, to be unconstitutional. If this is done, a vote is held on the motion, and a simple majority is needed to uphold the motion. This effectively ends the filibuster…..but permanently. You see, if a senate rule is changed, it effectively sets a precedent in constitutional jurist prudence.  The rule could never be brought back. Congress would revert back to where it started, with simple majority rule. I have to say that this would be a huge step. The minority would no longer be protected by the senate. A majority could now easily roll over all opposition to its objections. The filibuster is the only tool, other than the constitution that protects the minority interests in the country. The vote, would be the only tool left to protect minority interests. But I would be remiss if I didn’t include the 17th amendment in this discussion. You see the constitution originally gave state legislatures the power to choose senators. This gave states a lot of control over their senators. States able to elect local people to their state house, could expect a US Senator that would protect their interests. If they didn’t, the state legislature could replace them. Today, senators are elected directly by the people, per the 17th amendment, leaving no recourse for change, other that the ballot box. This change can certainly be debatable, but senators are now more accountable to party rather than the people of their state. This change in the way senators are selected, made the filibuster a much more important tool and created the adversarial situation we have today. It leaves open the argument of did the founders intend a simple majority to enact legislation or a super majority of 60 votes? I’ll get into that in question 4.

So what does all this have to do with the AHCA and misinformation? If I heard it once, I heard it a thousand times…….”REPEAL OBAMACARE!” Over and over FB posts and comments asking for repeal…simply repeal it. Even House members and senators going on TV and claiming they promised a full repeal…..repeal first! they said.  Well….the AHCA was not immune from a filibuster in the senate, which a full repeal would have brought, as sure as Obama vetoed the 2015 bill that called for a partial repeal. There was only one way around the filibuster if a full repeal bill was sent to the senate…..ending the filibuster for ever.

judge Gorsuch
Judge Gorsuch


I get that there are those that think this would be a good idea, and even I am on the fence……but the filibuster has helped block nutty liberals and progressive majorities for a long time. Republicans were able to block a lot of Obama legislation during his tenure. For sure, they were doing it when it was convenient for their special interests, but that’s corruption and that’s a whole other discussion. Personally, I think ending the filibuster would be a mistake, because just imagine a democrat majority in congress and a democrat president like Obama again. Any legislation could be enacted as long as it passed constitutional muster, which, in case you haven’t noticed, the courts have been packed with leftist, activist judges. This is why the republicans are prepared to end the filibuster to get Gorsuch confirmed to the Supreme Court. In the scenario I just portrayed, the Supreme Court would be the only tool left to stop leftists policies from being enacted. His confirmation would maintain the court’s conservative slant, at least for a while. The next three justices to leave the bench are all liberal leaning activist types. Again these vacancies will be occurring easily within the next few years. As long as republicans have control of the senate, and the filibuster is gone, the court will shift right for a generation. Even if the democrats regained control within the next few years, there would be no change. So today…it makes sense to eliminate it. But in the future it could be a terrible choice. At minimum, if the filibuster  is ended, we can rest assured that the court will not change in the foreseeable future.

To sum up……The AHCA would have been filibustered in the senate, if it was a full repeal of the Affordable Care Act. So the AHCA was created to get the bill through the senate and avoid a filibuster.

Author: kgeorge152

Retired small business owner in manufacturing

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