This is not the same minority protection the Senate had for most of its history.
Ramesh Ponnuru has a great column in the Washington Post about why the Senate should not eliminate the filibuster as a political check on shallow and transient majorities. The minority party in the Senate should be able to block legislation if it has the numbers.
Earlier this year, also in the Post opinion pages, George Will argued that blocking legislation should require some effort and impose some pain — on both sides of the chamber. That way, the filibuster may once again become an entrance ramp to Senate debate, not its death warrant.
Ramesh argues that the filibuster is a core American tradition, one that existed in far more productive Congresses. Yet the “silent filibuster” — in which the minority simply objects to cloture, killing the bill immediately if the majority can’t get to 60 votes — has existed only since the 1970s. Before then, objecting senators needed to hold the floor continuously. And the majority could not move on to any other business until they won enough votes for cloture (it then took 67), the minority was exhausted and yielded the floor, or they dropped consideration of the bill.
Will explained the rule’s evolution in 2017:
There was no limit on Senate debate until adoption of the cloture rule empowering two-thirds of senators present and voting to limit debate. This occurred on March 8, 1917 — 29 days before Congress declared war on Germany — after a filibuster prevented a vote on a momentous matter, the Armed Ship Bill, which would have authorized President Woodrow Wilson to arm American merchant ships. (He armed them anyway.)
In 1975, imposing cloture was made easier by requiring a vote of three-fifths of the entire Senate, a change the importance of which derived from what Majority Leader Mike Mansfield (D-Mont.) did in 1970: He created the “two-track” system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a filibustered bill and move on to other matters. Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions filed; in the 47 years since 1970, there have been 1,716.
If the Senate returned to its true tradition, a dedicated minority of enough members could still block legislation effectively — but they would have to care enough to put their backs into it. Similarly, the majority would be incentivized to either bargain with the other side or kill the legislation should the opposition be impenetrable (sorry, SAVE Act), lest the floor be locked up for weeks on end. “It was this mutual inconvenience,” Will wrote, “that, between 1917 and 1970, made filibusters rare and productive of pressure for compromise to resolve the impasse.”
Under the Senate’s revisionist filibuster regime, this ostensibly legislative body does far too little legislating. If we want a Congress more like the ones of decades past, we must restore their more balanced kind of minority protection.