August 12, 2021
Jewish tradition celebrates the meaningful exchange of ideas and respect for minority viewpoints. The Talmudic debates of the houses of Hillel and Shammai remain examples of ways to respectfully advance differing views. In fact, the Babylonian Talmud tractate Eiruvin 13b teaches that Jewish law follows the school of Hillel precisely because it humbly preserved the opposing opinion in its teachings. A page of Talmud also includes minority opinions as well as the majority consensus. Mishnah Eduyot 1:5 teaches the importance of preserving the individual or minority’s opinion as it may become relevant later. We recognize there may be truth and wisdom in opposing views on many issues. As the Talmud teaches of debates between the Houses of Hillel and Shammai, “These and these are both the words of the Living God” (Eiruvin 13b). We value wrestling with and trying to reconcile such conflicting views.
In modern times, a healthy democracy requires the constant balancing of majority and minority rights and voices. In the American political tradition, the Senate filibuster, which requires 60 votes to overcome (known as “invoking cloture” to force a vote), has been characterized as a means of ensuring the minority’s voice is heard in the Senate. In theory, it may also promote deliberation, bipartisanship, and compromise.
Yet the filibuster may also be used as an offensive weapon to obstruct legislative business and has too often been used to thwart important American values of equality and justice. As we noted in our 2005 Resolution on Protecting Minority Rights and the Filibuster in the U.S. Senate,[1] the most memorable uses of the filibuster in real life have been to thwart attempts to pass civil rights statutes in the 1950s and 1960s. The longest filibuster on record was 24 hours and 18 minutes in opposition to the Civil Rights Act of 1957. Researchers have found that between 1917 and 1994, half of all bills that were defeated by filibuster focused on civil rights.[2] By threatening meaningful progress to ensure civil and voting rights—as well as other important protections of our democracy and issues, such as gun violence prevention and immigration reform—the filibuster continues to be a tool that can perpetuate white supremacy and systemic racism.
Nonetheless, as Reform rabbis, we are mindful of the importance of debate and recognize that elimination of the filibuster can be used to promote tyranny as easily as justice. We are especially wary of the tyranny any uncontrolled majority group can perpetrate upon a minority. To that end, we resolved in 2005 to “oppose legislation or other procedural changes that would eviscerate the rights of minorities in the Senate.”[3] We therefore seek not to abolish but to reform the use of the filibuster to accomplish its worthy goals, which have been lost through a series of procedural changes that encourage its abuse.
A 1970 procedural change effectively changed the filibuster from a process to encourage dialogue to one that precludes dialogue. Until 1970, the filibuster required a senator to continue speaking (with interruptions for questions). As this had the effect of stopping other Senate business, the Senate rules were changed to eliminate the “talking filibuster” and to allow any senator to merely indicate the intent to filibuster and oppose reaching any vote on legislation. Although this permitted other Senate business to proceed, this “silent filibuster” has allowed a single, anonymous senator to indefinitely obstruct a bill without speaking on the Senate floor. The modern filibuster is fundamentally voiceless, secretive, and obstructionist.[4]
Since the procedural change to the silent filibuster more than five decades ago, a growing body of evidence shows that today’s filibuster has contributed to political stalemate and obstruction by the minority. Senate action requires not merely a majority but 60 votes within the 100-member body, which happens rarely.[5] Though there were just 49 votes to end a filibuster (invoke cloture) between 1917 and 1970, there were 298 votes to invoke cloture in 2019–2020 alone—indicating the exponential growth in use of the filibuster as a legislative tactic. The filibuster, once a rarity, is now a central governing principle of the Senate. Rather than encouraging compromise between senators with differing views, the filibuster allows senators to avoid the need to compromise—or even to discuss. The Senate has gone from being known as “the world’s most deliberative body” to one that often avoids deliberation of the most controversial and meaningful issues. As Reform rabbis who recognize the importance of dialogue and disagreement, we seek to change this pattern wholly apart from the substantive issues at stake.
Filibuster reform that would contribute to dialogue rather than eliminating it has the potential to rebalance majority and minority rights in the Senate. A return to the “talking filibuster” with other possible changes suggested below would better balance the right of the minority to voice its opinion and have a meaningful say in the legislative process with the need for Congress to legislate on the most pressing issues of our time effectively and deliberately. It would also shine light on the views and identity of those who are filibustering, allowing constituents and all Americans to see their motives and values more clearly.
Therefore, the Central Conference of American Rabbis resolves to:
- Support filibuster reform that balances the constructive impact of debate and the ability of the minority to participate meaningfully in the legislative process with the need for the Senate to advance legislation effectively, including but not limited to the following:
- Restoring the pre-1970 “talking filibuster” through continuous speech by the minority related to the legislation at issue, with breaks where appropriate to effectuate other Senate business;
- Eliminating duplicative opportunities for senators to filibuster the same legislation;
- Ending silent holds so that it is known which senator(s) wish to filibuster (if the talking filibuster is not reinstated);
- Expanding opportunities for the minority to offer amendments with sufficient time for debate;
- Adopting rules and procedures to encourage discussion and negotiation between those holding different positions; and
- Considering a lower number of senators needed for cloture (e.g., to 55 senators or 55% of seated senators) under certain circumstances.
- Educate our members and the communities we serve on the historic and ongoing role the filibuster plays in upholding and strengthening systemic racism and white supremacy.
[1] “Protecting Minority Rights and the Filibuster in the U.S. Senate,” Adopted by the 116th Annual Convention of the Central Conference of American Rabbis, Houston, TX, March, 2005, Protecting Minority Rights and the Filibuster in the U.S. Senate – Central Conference of American Rabbis (ccarnet.org).
[2] https://www.vox.com/policy-and-politics/2021/3/25/22348308/filibuster-racism-jim-crow-mitch-mcconnell
[3] “Protecting Minority Rights and the Filibuster in the U.S. Senate,” CCAR, 2005.
[4] Two exceptions to the filibuster have been created to allow continued basic functioning of government. A Senate majority has been sufficient for current budget measures under the process of “reconciliation” and for approval of executive branch appointments and judges. We recognize that any carve-out for any substantive issue likely opens the door to carve out of any other substantive issue and risks eliminating any benefit of the filibuster. Elimination of the filibuster might improve current odds of passing CCAR-supported reforms in voting, police accountability, and environmental justice but risks later facing repeal of hard-won legislation on reproductive, LGBTQ, and immigrant right, among other CCAR priorities.
[5] Although the Democratic caucus held 60 votes for about six months in 2009–2010 after one special election and one change of party, the last time 60 sitting senators had been elected from the same party was after the election of 1976, the first presidential election following Watergate.