I’ve been getting a lot of requests to do an explainer on the filibuster, and this seems like a good time to get into it.
When the Democrats won control of the Senate earlier this month, which gave them full majority control of the federal government, folks immediately pointed out that Republicans would make it impossible for them to pass any legislation (a new voting rights bill, an climate change bill, a jobs bill, etc.) due to the existence of the filibuster. Calls to get rid of the filibuster grew loud on the campaign trail (notably with Elizabeth Warren) but there has also been a lot of pushback on getting rid of it.
It’s being talked about a lot in the news, so here goes.
What exactly is a filibuster?
A filibuster is essentially, any tactic used to obstruct or delay legislation in the Senate. The more dramatic form of the filibuster is when a single Senator speaks for hours on end to delay a vote. But the more mundane form of the filibuster is what we see regularly in the Senate today: a vote to object.
It is true that any bill or resolution only needs a simple majority to pass in the Senate. But you need to get through some procedural hoops to get to that vote. For example, bills must first be debated on the Senate floor. Ending the debate to move on to a full vote on the bill happens in one of two ways. 1) The Majority Leader asks for unanimous consent (where all 100 Senators agree to move on). This often happens with routine or mundane bills. If everyone agrees, debate ends and they move on to a full vote. 2) A Senator objects to unanimous consent, so debate cannot end. Now, the only way to end debate is by filing a cloture motion. And you need to get 60 votes for it to pass. If you don’t get 60 votes, you cannot move on to a full vote and bill is considered filibustered.
In our hyper-partisan environment, that simple objection by any Senator stops a bill dead in its tracks. Even if a couple of Senators cross the aisle to vote with the other party, that isn’t enough to clear the 60 vote threshold, and the bill or resolution essentially dies.
So how has anything passed in the Senate?
There are a few situations where the filibuster does not apply. Famously, then-Majority Leader Harry Reid used what they call the “nuclear option” to get rid of the filibuster on all executive and judicial nominees (excluding Supreme Court nominees) after the Republicans increased the use of the filibuster under President Obama. Just look at the spike in cloture motions that were filed!
This is why getting President Biden’s Cabinet and other Senate-confirmed positions confirmed only takes 51 votes — because you can’t filibuster them.
Later, when Mitch McConnell became the Majority Leader, he used the nuclear option to get rid of the filibuster on Supreme Court nominees to push through Neil Gorsuch.
Besides nominees, some legislation can be passed with a simple majority using reconciliation. This is tied to budget related bills, and is how the GOP passed the big tax cut bill early in Trump’s presidency. But, it can only be used once a year.
But as far as any regular legislation is concerned, the filibuster is still in place.
Has the filibuster always existed?
No. The Founding Fathers designed the Senate to work with a simple majority. It only really started to get used in the mid-1800s. Historians point to John C. Calhoun, the “father of the Confederacy,” as the person who developed the use of the filibuster. And he did it to empower the planter class by preserving slavery against the march of progress. This is why people call it a “Jim Crow relic.” At the end of this post, I’ve linked an interesting article about how modern Republicans have also often used the filibuster to stop civil rights legislation.
Why should we get rid of it?
The Senate’s primary job is to pass legislation, and the rules of the Senate paired with hyper-partisanship make that nearly impossible. The current Senate is called the “legislative graveyard” for a reason. Neither party has any chance of passing legislation even when they’re in the majority because it is increasingly difficult to convince enough Senators to cross the aisle. The Republicans have become obsessed with gridlock and obstruction, and getting rid of the filibuster solves that problem. Simply put, if we get rid of the filibuster, any bill that can garner majority support should pass.
Is there a reason why we shouldn’t get rid of it?
The filibuster is seen as the one way the minority party can slow down or block legislation and so many longtime Senators see it as a key safeguard. Just look at the Supreme Court — if the filibuster was still in place during Trump’s presidency, would he have been able to get 60 votes for Gorsuch, Kavanaugh, or Barrett?
The filibuster also makes each individual Senator quite powerful. Some Senators use the threat of a filibuster to try and gain concessions for their constituents in their state, whereas others just use it to unilaterally obstruct.
Still, I’m thoroughly convinced at this point that having a Senate that does nothing other than confirm nominees is an absolute waste. Let’s make it a simple majority again, and let the minority have their equal debate time and opportunity to offer amendments on legislation once again.
What about Joe Manchin?
Like others who have been in the Senate a while, Manchin has often said he wants to preserve the filibuster. He is not alone in the Democratic party, by the way, although the winds seem to be shifting of late. But know this: Back in June, Manchin was asked by a reporter about the growing chorus among his Democratic colleagues to eliminate it. His response? “I just heard they started talking and I’m interested in listening to anything because the place isn’t working.” Source
So what does it take to get rid of the filibuster?
The rules of the Senate are quite arcane and so I’m going to rely on a helpful Brookings’ article to answer this question:
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 article goes into more depth on this topic, including looking at ways that the filibuster could be reformed, if not totally eliminated. I’ve linked it at the bottom of this post.
I recognize that someday, the Republicans will be back in control of the Senate and not having the filibuster in place will make that very painful for us. That said, I only need to look at the platforms and goals that each party has for a few seconds before I remember that the Democrats are proposing legislation that is quite popular with the vast majority of American people, whereas the Republicans’ policy agendas are not. I am relishing the thought of being able to pass major legislation to make people’s lives better. Voting rights, gun safety, climate change, jobs, and so much more. Meanwhile, the two big legislative pushes the Republicans tried when they had unified control under Trump for two years were … tax cuts for the rich and repealing the Affordable Care Act (which of course failed.) Yeah, I’ll take our chances.
Finally, it’s rich to hear Mitch McConnell threaten Democrats not to get rid of the filibuster. This is the same man who nuked the filibuster for Supreme Court nominees and used the nuclear option to change the rules in the Senate to decrease debate time to more quickly confirm Trump’s nominees. He has no business telling anyone that we need to “preserve” the traditional Senate rules. He is the primary reason the chamber is dysfunctional.
Let’s do this.
Watch John Oliver’s segment on the filibuster HERE
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