June 14, 2021

The filibuster and why it matters to LGBTQ+ equally

The filibuster is a parliamentary procedure which permits United States senators to initiate a non-stop debate, often a monologue, in order to block or slow down a piece of legislation — even if it seemingly has majority approval.

These "debates" span from the idealistic and politically progressive to a display of power and control.

The filibuster can be invoked by three-fifths (currently 60 percent) of the voting Senate. The debate may be brought to a close by invoking cloture, a legislative procedure of ending debate and taking a vote.

At times, a "nuclear option" can be invoked to close the debate with a simple majority vote. If the vote is split 50/50 — and currently there are 50 Democrats and 50 Republicans — with no simple majority vote being achieved, the presiding vice-president (in this case, Democrat Kamala Harris) breaks the tie.

The filibuster is all about power. Whichever party is in the Senate minority, the filibuster becomes its inalienable right.

But if it’s all bad, why don’t senators just get rid of it?

Defenders of the filibuster contend the minority party’s entitlements are protected by the filibuster. They assert that minority rights could be trampled by the controlling party, thus silencing minority voices and their points of view.

Opponents complain that the filibuster subverts majority rule and creates gridlock.

Both sides tend to claim that the U.S. Constitution supports their position. On this point, neither side is correct. The filibuster is not codified by the Constitution, rather it is incorporated into Senate practice through the Standing Rules of the Senate.

So, whether seen as a protector of political minorities from the tyranny of the majority, or viewed as a tool to promote partisan obstruction, it comes full circle back to the Senate’s balance of power.

In 2021, the Monmouth University Polling Institute reported that one-third of Americans approved (34 percent) and one-third disapproved (34 percent) of the filibuster. The other one-third (33 percent) expressed no opinion.

American citizenry opinion on the filibuster is strongly partisan. A majority of Republicans (61 percent) approve of the filibuster and just 13 percent disapprove of it. Only 9 percent of Democrats approve of the filibuster, while a majority (54 percent) disapprove. Independents are more divided between approval (38 percent) and disapproval (30 percent).

The filibuster often defends conservative and/or religious belief systems.

Many filibusters are heavily interlaced with Jim Crow doctrines, with the intent to protect pro-racist issues.

Replace “Jim Crow doctrines” with any minority issue and it is easy to anticipate a sluggish and obstructive path to victory — and so it is for the Equality Act.

The Equality Act seeks to ban anti-LGBTQ+ discrimination across the country. But even if all 50 Democrats were to support it, the Republicans have promised to filibuster it — meaning at least 10 Republicans would have to join all 50 Democrats for passage. That is a tall order when Senate Minority Leader Mitch McConnell has promised to block President Joe Biden’s entire legislative agenda.

In 1789, the first U.S. Senate suggested that a floor debate could be terminated by calling for the question. That is, a vote would be called to resolve the topic under discussion. Vice President Aaron Burr opposed any motion that would cut short a Senate debate. Ultimately the Senate sided with his position. And there you have the birth of the filibuster.

Today, a threat of an actual filibuster almost assures that a bill needs a guarantee of 60 votes. Smokey back rooms aside, without such a guarantee, the issue is unlikely to make it to the Senate floor. 

So where does that leave us?

All efforts to revise, overturn or eliminate the filibuster are needed to promote the Equality Act, as well as other Democratic priorities such as infrastructure and voting rights. At the same time voter education, voter registration and voter turnout are crucial for the Equality Act to succeed.

Democrats Abroad has set up a Legislative Issues Group to work for passage of the Equality Act and advance LGBTQ+ protections across the 50 states and D.C.

Are you interested in being a Democrats Abroad liaison to LGBTQ+ equality groups in your home or voting state? We’re building links with groups like Georgia Equality, which recently joined DA for a webinar on voting rights and LGBTQ+ rights in Georgia. You can watch it here

If you’d like to get involved, learn more about the proposed legislation and help make equality under the law a reality, contact the LGBTQ+ Caucus at [email protected].