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RSN: FOCUS: What Would It Take to Eliminate the Filibuster?
22 March 21
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22 March 21
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FOCUS: What Would It Take to Eliminate the Filibuster?
Molly E. Reynolds, The Brookings Institution
Reynolds writes: "How would eliminating the filibuster actually work?"
he Vitals
The Senate cloture rule—which requires 60 members to end debate on most topics and move to a vote—could pose a steep barrier to any incoming president’s policy agenda. Voices on both sides have called for reform in the face of partisan gridlock, and while change may be possible now that Democrats control Congress and the White House, complicated dynamics in the Senate would make it an uphill battle.
A Closer Look
Just weeks into Joe Biden’s presidency, it is clear that he faces considerable obstacles in pursuing his agenda in Congress. The Senate cloture rule—which requires 60 votes to cut off debate on most measures—is probably the highest hurdle. Democrats’ Senate majority rests on the tie-breaking vote of Vice President Kamala Harris, and even the process of organizing the Senate’s committees got bogged down by a debate over whether Democrats would attempt to eliminate the legislative filibuster in the opening weeks of the 117th Congress. While Democrats have some procedural options for circumventing the filibuster—discussed in greater detail below—the debate over whether to retain the procedure is likely to remain center stage as legislators work to address the range of challenges facing the country.
Where did the filibuster come from?
While our understanding of the Senate as a slower-moving, more deliberative body than the House of Representatives dates to the Constitutional Convention, the filibuster was not part of the founders’ original vision of the Senate. Rather, its emergence was made possible in 1806 when the Senate—at the advice of Vice President Aaron Burr—removed from its rules a provision (formally known as the previous question motion) allowing a simple majority to force a vote on the underlying question being debated. This decision was not a strategic or political one—it was a simple housekeeping matter, as the Senate was using the motion infrequently and had other motions available to it that did the same thing.
Filibusters then became a regular feature of Senate activity, both in the run-up to and aftermath of the Civil War. Senate leaders from both parties sought, but failed, to ban the filibuster throughout the 19th century. Opponents would simply filibuster the motion to ban the filibuster. In 1917, as part of a debate over a proposal to arm American merchant ships as the U.S. prepared to enter World War I, the chamber adopted the first version of its cloture rule: It allowed two-thirds of all senators present and voting to end debate on “any pending measure.” Several changes to the rule followed in the coming decades. More recently, in 1975, the number of votes needed to invoke cloture on legislative matters was reduced to three-fifths (or 60, if the Senate is at full strength). In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.
Consequently, for many matters in the Senate, debate can only be cut off if at least 60 senators support doing so. (This is not universally true, however, and we will see several consequential counterexamples below.) While Senate rules still require just a simple majority to actually pass a bill, several procedural steps along the way require a supermajority of 60 votes to end debate on bills.
How has the use of the filibuster changed over time?
There’s no perfect way to measure the frequency with which the filibuster has been used over time. Senators are not required to formally register their objection to ending debate until a cloture motion actually comes up for a vote. If Senate leaders know that at least 41 senators plan to oppose a cloture motion on a given measure or motion, they often choose not to schedule it for floor consideration. But the number of cloture motions filed is a useful proxy for measuring filibusters, and as we see below, the number of such motions has increased significantly during the 20th and 21st centuries.
How does the Senate get around the filibuster now?
Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered.
While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate. Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.
How would eliminating the filibuster actually work?
The most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22, the cloture rule that requires 60 votes to end debate on legislation. Here’s the catch: Ending debate on a resolution to change the Senate’s standing rules requires the support of two-thirds of the members present and voting. Absent a large, bipartisan Senate majority that favors curtailing the right to debate, a formal change in Rule 22 is extremely unlikely.
A more complicated, but more likely, way to ban the filibuster would be to create a new Senate precedent. The chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways. Importantly, this approach to curtailing the filibuster—colloquially known as the “nuclear option” and more formally as “reform by ruling”—can, in certain circumstances, be employed with support from only a simple majority of senators.
The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer (typically a member of the Senate) agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.
In both 2013 and 2017, the Senate used this approach to reduce the number of votes needed to end debate on nominations. The majority leader used two non-debatable motions to bring up the relevant nominations, and then raised a point of order that the vote on cloture is by majority vote. The presiding officer ruled against the point of order, but his ruling was overturned on appeal—which, again, required only a majority in support. In sum, by following the right steps in a particular parliamentary circumstance, a simple majority of senators can establish a new interpretation of a Senate rule.
What are some ways to modify the filibuster without eliminating it entirely?
The Senate could also move to weaken the filibuster without eliminating it entirely. A Senate majority could detonate a “mini-nuke” that bans filibusters on particular motions but otherwise leaves the 60-vote rule intact. For example, a Senate majority could prevent senators from filibustering the motion used to call up a bill to start (known as the motion to proceed). This would preserve senators’ rights to obstruct the bill or amendment at hand, but would eliminate the supermajority hurdle for starting debate on a legislative measure.
A second option targets the so-called Byrd Rule, a feature of the budget reconciliation process. These bills have been critical to the enactment of major policy changes including, recently, the Affordable Care Act in 2010 and the Tax Cuts and Jobs Act in 2017. To guard against a majority stuffing a reconciliation measure with non-budgetary provisions, the Byrd Rule limits the contents of the bill and requires 60 votes to set aside. Because the Senate’s non-partisan parliamentarian plays a significant role in advising whether provisions comply with the Byrd Rule, some senators have proposed diluting the power of the Byrd Rule by targeting the parliamentarian. This approach would weaken the filibuster by making it easier for a majority party to squeeze more of its priorities into a reconciliation bill (which then only requires a simple majority to pass). For instance, the majority party could select a parliamentarian who is more willing to advise weaker enforcement of the Byrd Rule, and, indeed, there is some history of the parliamentarian’s application of the Byrd Rule affecting his or her appointment. Alternatively, the senator presiding over the chamber (or the vice president, if he or she is performing that function) could disregard the advice provided to him or her by the parliamentarian, undercutting the efficacy of the Byrd Rule.
In addition, discussions among Democratic senators, led by Senator Jeff Merkley (D-Ore.), have surfaced other ideas that aim to reduce the frequency of filibusters by making it more difficult for senators to use the tactic, including requiring senators who oppose a measure to be physically present in the chamber to prevent an end to debate.
How likely are we to see a change to the filibuster in 2021?
By winning majorities in both houses of Congress and the White House, Democrats have achieved one necessary condition for filibuster reform: unified party control of Washington. Under divided party government, a Senate majority gains little from banning the filibuster if the House or president of the other party will just block a bill’s progress.
But the filibuster could still survive unified party control. Senators often speak about their principled support for the filibuster. But senators’ views about the rules are more often shaped by their views about policy. There would likely need to be a specific measure that majority party senators both agreed upon and cared enough about to make banning the filibuster worth it. As Republicans’ experience in the first two years of the Trump administration suggest, such proposals may be easier imagined than achieved.
In addition, individual senators may find the filibuster useful to their own personal power and policy goals, as it allows them to take measures hostage with the hopes of securing concessions. For majority party leaders, meanwhile, the need to secure 60 votes to end debate helps them to shift blame to the minority party for inaction on issues that are popular with some, but not all, elements of their own party. Finally, senators may be concerned about the future; in an era of frequent shifts in control of the chamber, legislators may worry that a rule change now will put them at a disadvantage in the near future.
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RSN: FOCUS: Ronan Farrow | A Cuomo Accuser's New Claims of Harassment and Retaliation
19 March 21
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FOCUS: Ronan Farrow | A Cuomo Accuser's New Claims of Harassment and Retaliation
Ronan Farrow, The New Yorker
Farrow writes: "In her first extensive interview, Lindsey Boylan sheds new light on a toxic workplace, as insiders detail the campaign to discredit her."
n the morning of December 13, 2020, Lindsey Boylan sat in the passenger seat of her family’s car, with her husband at the wheel and her six-year-old daughter in the back. She began typing a series of tweets on her phone. Boylan, a former special adviser to New York Governor Andrew Cuomo, had felt increasingly troubled as press reports mentioned Cuomo as a potential Attorney General in the Biden Administration. For more than a year, she had been raising allegations on Twitter that Cuomo presided over a hostile and toxic workplace, initially drawing little attention. A week before, Boylan had tweeted again, and another former Cuomo employee had reached out to her privately, to share a story of being sexually harassed by the Governor. “I felt really responsible for what happened to this woman, because I didn’t do something about it,” Boylan told me, in her first detailed interview about her allegations. She saw the stories about Cuomo’s political prospects as a cause for urgency.
In the car, she began tweeting allegations that Cuomo had sexually harassed her, too. “@NYGovCuomo sexually harassed me for years. Many saw it, and watched,” she wrote. She referenced harassment about her looks and described an unpredictable and intimidating workplace experience. Her husband became aware of the tweets only as the reaction began to build online. “I felt like I was just exploded,” Boylan recalled. “And he felt like he was having a heart attack.”
As Boylan’s disclosures began to draw notice on social media, a group of current and former Cuomo staffers who served as his informal crisis-communications brain trust moved to squash them “in real time,” according to one person with direct knowledge of the effort. Members of that group included Melissa DeRosa, a senior aide; Rich Azzopardi, Cuomo’s spokesperson; and Steven M. Cohen, a former secretary to the Governor. They circulated Boylan’s tweets and held a series of urgent calls. The group had just emerged from a frantic effort to respond to allegations that Cuomo’s office had deliberately undercounted COVID-related deaths in New York nursing homes. They were “putting that to bed, and then she pipes up. And then it’s sort of a big scramble,” the person with direct knowledge of the effort told me. “It was, like, what the hell do we do about this?” Cuomo’s advisers arrived at a plan to leak Boylan’s personnel records, which included allegations that Boylan had bullied colleagues, some of them women of color. “The decision was made collectively,” the person with direct knowledge of the effort said. “That these are facts, the reporters should see them.”
An intermediary who says that he was not on the calls, Rich Bamberger, a former communications director for Cuomo who now works for the public-relations firm Kivvit, called several reporters and advised them to contact the Governor’s office. According to the person with knowledge of the conversations, Azzopardi then sent Boylan’s personnel files to reporters. By day’s end, several of the complaints about Boylan had appeared in stories, by the Associated Press, the New York Post, and the Albany-based Times Union. Boylan recalled being stunned by the articles. “I couldn’t move. I couldn’t breathe,” she said. In the ensuing days, Cuomo aides began contacting people who had worked under Boylan—which some of the recipients found intimidating, the Wall Street Journal reported last week. Cuomo advisers also considered releasing a letter attacking Boylan’s credibility and reputation, drafts of which were first reported by the Times this week. They ultimately decided against releasing the letter. “My life was, you know, for a period, destroyed,” Boylan told me. In a statement, Beth Garvey, Cuomo’s acting counsel, said, “With certain limited exceptions, as a general matter, it is within a government entity’s discretion to share redacted employment records, including in instances when members of the media ask for such public information and when it is for the purpose of correcting inaccurate or misleading statements.”
Boylan’s allegations largely faded from public view, until last month, when she posted a detailed account of her experience on Medium. Boylan told me, during a series of lengthy interviews, that she decided to disclose her allegations via online posts and initially declined interview requests from journalists because “having someone dissect my trauma is not something I wanted.” She said that the essay took her more than a month to write. “I realized I had to own this experience,” she told me. “It was something I was going to have to talk about eventually.” A series of disclosures about Cuomo from other women, including multiple allegations of harassment and one of groping, quickly followed Boylan’s. “Seeing Lindsey’s story was a huge factor in my decision to come forward,” Charlotte Bennett, a former Cuomo staffer who began publicly discussing her account of sexual harassment by the Governor after Boylan’s Medium post, told me. “Coming forward didn’t feel like a choice—it felt like my responsibility to validate Lindsey’s story and signal to others that it was O.K. to come forward.”
The revelations have left Cuomo’s political future in New York, which he has governed since 2011, in a free fall. He now faces probes by both the New York attorney general, Letitia James, and the state assembly, which this week retained a law firm for that purpose. Senate Majority Leader Chuck Schumer, Senator Kirsten Gillibrand, Representative Alexandria Ocasio-Cortez, and other prominent Democrats in the state congressional delegation have called for the Governor to resign. This week, President Biden, a longtime ally of Cuomo’s, said that the Governor should step down if the allegations are confirmed by investigators. Cuomo acknowledged some of the harassment allegations, saying, “I now understand that I acted in a way that made people feel uncomfortable,” but he maintained that his behavior was unintentional and denied all allegations that he “touched anyone inappropriately.” A spokesperson added, “As we said before, Ms. Boylan’s claims of inappropriate behavior are quite simply false.”
Until December 13th, Cuomo’s grip on power in New York had been near-absolute, a dominance secured at times through his willingness to discredit and intimidate his adversaries. Then Boylan posted her tweets. At first, it seemed as if she would meet the same fate as so many others who had challenged the Governor. Now, the Cuomo team’s response may turn out to be one of its final efforts to frighten an opponent into submission.
Between 2015 and 2018, Boylan served in several government roles, including deputy secretary for economic development. In 2016, she began interacting with Cuomo directly and had her first encounters with a workplace culture under him that she said was rife with bullying and retribution. “It was toxic, and particularly for women,” she said. Her description matched those of multiple current and former Cuomo staffers I spoke with, though others told me that the office culture was intense but not inappropriate. Boylan’s leaked personnel files reportedly contain allegations that she bullied women who worked with her, including Black women. Several former colleagues of Boylan’s, none of whom are Black, told me that they found the claims plausible and said that they had also found Boylan herself to be a hostile presence in the workplace. “I’ve seen Lindsey do her job well, but I’ve also had experiences where I felt belittled or bullied by her,” a former colleague, who spoke on condition of anonymity, told me. Others disputed that account or said that Boylan’s conduct was consistent with a culture where volatility was the norm. “It was a hard place to be,” Joel Wertheimer, an attorney who served as Cuomo’s staff secretary, told me. “They were nasty and awful.” Wertheimer quit after just seven months, dispirited by the environment. He is now a campaign consultant to Boylan, who is running for Manhattan borough president. He added, “I also was not the best version of myself when I was working there.”
Boylan said that Cuomo set the tone, ridiculing several of his closest staffers, including Stephanie Benton, the director of the Governor’s offices. “I remember, Stephanie had a haircut that he kept making fun of her for all day in front of other people. And she was crying,” Boylan said. (Benton, who is still employed in state government, said that Boylan’s account was untrue and that the Governor had always treated her well, adding, “If I felt otherwise, I would speak for myself.”) Boylan also said that Cuomo repeatedly ranted about another staffer, a young male aide, being “fat.” The young male aide, who no longer works for Cuomo, declined to comment on his experience and asked not to be named. Boylan described the workplace culture under the Governor as aggressive and combative. At a party in the pool house at the Governor’s mansion, in Albany, Boylan recalled seeing a dartboard bearing a photo of Bill de Blasio, Cuomo’s antagonist since he was elected Mayor of New York City, in 2014. “I couldn’t believe how brazen that was,” she said. (A spokesperson for the Governor declined to comment on the dartboard.)
Boylan had her first interaction with Cuomo after a speech he gave at Madison Square Garden on January 6, 2016, when she was working as the chief of staff at Empire State Development, a state entity that promotes economic growth. She said that he seemed to pay an unusual amount of attention to her. Soon afterward, she said, her boss, Howard Zemsky, told her that Cuomo had a “crush” on her. (Zemsky did not respond to a request for comment.) During the next two years, Boylan said, the Governor repeatedly commented on her appearance and touched her more than she felt was necessary or professional. “He would put his hand on my lower back,” Boylan said, adding that her experiences mirrored those of another woman, Anna Ruch, who told the Times that the Governor touched her lower back and asked to kiss her at a wedding reception. “He would find a way to, like, touch me in passing—getting on the plane, getting off the plane,” Boylan said. “He frequently stared at my legs.”
Kelsey DePalo, who met Boylan when both attended Wellesley College, told me that Boylan was initially excited to work with Cuomo, but her attitude soon changed. “She would talk about how he was creepy,” DePalo recalled. “We would talk about, you know, how when, if someone opens a door for you, they can open a door, or they can open a door and put their hand on the small of your back. They can lean over to tell you something, or lean over to tell you something and also put their hand on your knee.” She added, “You can sometimes catch someone, like, looking at your outfit in a way that makes you feel uncomfortable. Or commenting on your appearance. And so she would describe how he gave her the creeps, and was very touchy-feely in ways that made her feel highly uncomfortable.”
Another friend, as well as Boylan’s mother and husband, told me that Boylan had discussed similar concerns with them in 2016 and 2017. Boylan’s mother, Karen Boylan, saw the behavior as a pattern. “I hoped she would stay away from him,” she told me. Karen told me that, years earlier, she had quit a job as an accountant at a law firm after her boss sexually harassed her. Boylan was in high school at the time, and told me that her mother’s experience, which she referred to in her first tweets about her harassment allegations, deeply affected her. Boylan’s mother said that she had described the harassment to her daughter to prepare her for what she might face in the workplace. “It was something that we talked about a lot while she was growing up,” Karen told me. “You know, you hope your children learn from this.”
In an e-mail sent on August 4, 2016, Karen wrote, to her daughter, “I was thinking after our conversation last night about Governor Cuomo… I would hate (couldn’t tolerate) living with a partner or husband who behaved like that with women. It sounds very inappropriate what he says to you too.” Three months later, Boylan forwarded her mother an e-mail in which a Cuomo staffer asked Boylan’s supervisor whether she would be at an event the Governor was attending. “It’s gross,” Boylan told her mother, in a text that day. “I just wish I could be told how great I am based on my intelligence and abilities rather than some dumb thing.” (A spokesperson for Cuomo said that the staffer who sent the e-mail “oversaw events and scheduling, so it was her job to understand what relevant senior members of the team—male and female—would be attending Governor events.”)
Boylan said that the Governor frequently sought her out, sometimes taking her away from substantive responsibilities to fulfill a role she felt was ornamental. The Regional Economic Development Council awards, in Albany, in December, 2016, were the culmination of a year’s work for Boylan. The monetary awards to local businesses and organizations are a part of Cuomo’s economic strategy and were a centerpiece of Boylan’s portfolio. After the awards, a Cuomo aide aggressively pressed Boylan to return to New York City on a helicopter with Cuomo and Maria Bartiromo, a television host, who had spoken at the event. Boylan refused. “He likes to put women next to each other,” Boylan said. “Like we’re part of his tools, or his little, you know, dolls.” (A spokesperson for Cuomo said that the flight arrangements were “not a point of contention.”) A few days later, Benton, the Cuomo aide, e-mailed Boylan, telling her that the Governor had suggested Boylan look up a woman that colleagues had told her was romantically linked to the Governor. “You could be sisters,” Benton wrote. “Except you’re the better looking sister.” (Benton told me, “That was my attempt at banter, not his.”)
At a holiday party held at an Albany convention center later that month, Boylan said, when the Governor approached her, she left the room. Later that day, she said, the young male aide, who Boylan said had been bullied, called and told her that the Governor wanted her to come to the Capitol. (The aide declined to comment on the call.) As Boylan walked to Cuomo’s office in the Capitol, she called her husband and told him that she was afraid. In a statement, her husband said that he could “sense absolute terror in her voice.” Cuomo showed her his office, and called attention to a cigar box that he told her was a gift from President Bill Clinton. Since childhood, Boylan had idolized Hillary Clinton. She once waited in line for hours to have a photo taken with her, an experience that she said “changed my life.” Boylan said that the obvious reference to Clinton’s sexual behavior disturbed her, because the Governor knew that she considered Hillary Clinton a role model. “It was deeply distressing,” Boylan told me.
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