The Insider's guide to the Senate filibuster

Editor-in-Chief Teddy David ('22) explains the past, present, and future of the Senate filibuster, and why it matters for our politics.

By
Teddy David
on
May 17, 2021
Category:
Politics

The United States Senate holds the rather grandiose epithet of “the world’s greatest deliberative body.” Yet you’d expect that, sooner or later, this venerable institution would move from the deliberative to the decisive stage of legislating.

During the presidential campaign, Joe Biden and congressional Democrats outlined a sweeping and ambitious legislative agenda that, with control of the White House and both houses of Congress, now seems within reach. They have already passed a $1.9 trillion Covid relief package through the byzantine process known as “budget reconciliation,” but, with partisan rancor in Washington showing no signs of abating, one thing above all stands in the way of Democrats accomplishing their goals – the Senate filibuster.

What is the filibuster, anyway?

The Senate is not a strictly majoritarian institution, as every state, no matter how small or large, gets two seats. This disproportionality is intended to counterbalance the relative proportionality of the House of Representatives, ensuring that small states get a significant voice in the halls of power. Nevertheless, the Senate adds the filibuster as an additional layer of counterbalance.

In this context – and without getting into the weeds of parliamentary procedure – the filibuster is a process by which a senator or group of senators can delay voting on a bill by extending the period of debate indefinitely.

If proponents of a measure wish to place a time limit on debate so that the measure can be brought to a vote – a motion called “invoking cloture” – the onus is on the supporters to marshal 60 or more votes (rather than a simple majority of 51) in favor. The filibustering party need not do much at all, under current rules. Once you have invoked cloture, you then only need 51 votes to pass the bill itself, but you first have to clear the 60-vote hurdle to end debate.

In today’s deeply polarized United States – where a 60-vote Senate majority exists only in Chuck Schumer’s and Mitch McConnell’s fever dreams – it’s easy to see how the filibuster presents a near-insurmountable hurdle to passing most significant legislation.

Why would you support the filibuster?

Given how easy the filibuster makes obstructionism in today’s political climate, it may be hard to imagine why someone would support the filibuster for any reason other than pure political cynicism. Certainly, there is no shortage of political cynics in Washington, but it is also possible to defend the filibuster on idealistic grounds.

First, one might argue that the filibuster ensures some level of consensus on major policy issues. As the non-majoritarian elements of the U.S. Constitution suggest, the prevention of a “tyranny of the majority” – by which the barest majority of 50% plus 1 can dictate terms to the 50% minus 1 – is a major preoccupation of the American governmental system. Proponents of the filibuster believe that this procedure is a vital part of the counterbalances that prevent such an outcome.

Another common argument for the filibuster is that it prevents wild swings of policy on the basis of momentary fads or panics. By requiring 60 votes to limit debate, the filibuster allows fleeting emotions or fear-mongering to cool, so that level heads may prevail.

Relatedly, the filibuster can defend against dramatic swings in policy every time the congressional majority changes hands. In this “seesaw theory,” federal policy reversing course so frequently would introduce an unsustainable level of volatility into the lives of Americans, lowering confidence in the economy and in the stability of the United States abroad.

Why would you oppose the filibuster?

On the other hand, opponents of the filibuster could argue that institutions such as the Senate itself are sufficient to protect against a pure tyranny of the majority, while the filibuster overreaches and often prevents the business of government from being accomplished.

In this line of argument, the fact that the people have given a party a majority – no matter how slim – is mandate enough and indicates that the electorate actively wants that party to pursue its legislative agenda. If the filibuster prevents a party from pursuing the agenda for which a majority of the people voted, then it will, over time, undermine the voters’ faith in the ability of the democratic process to produce the results for which they voted.

The anti-filibuster camp might also make the argument that it is time to move away from a D.C.-centric idea of bipartisanship. Although they may still advocate bipartisan discussions and keep open the possibility of compromise, filibuster opponents are more likely to look to public opinion at large as justification of their agenda, even if it only commands the barest of majorities on Capitol Hill.

Current Democratic opponents of the filibuster, for example, point to the broad popularity of Democratic policy priorities with the American people as evidence that the logjam in Washington is not representative of the opinions of the nation as a whole.

They also see the broad unpopularity of the GOP agenda at a national level as an existing guard against wild policy reversals, if and when the majority changes hands. In other words, public opinion itself is a check on the aforementioned “seesaw theory,” it being, at least in theory, electoral suicide to enact a sweeping legislative agenda without broad popular support.

Finally, Democratic filibuster opponents have underlined the racist past of the filibuster as justification for its abolition or reform. Although the filibuster did not become the ever-present Senate tactic we know today until the twenty-first century, it was utilized periodically throughout the twentieth century to uphold Jim Crow laws by blocking civil rights and anti-lynching legislation – including a 24-hour-and-18-minute speech by Strom Thurmond in opposition to the 1957 Civil Rights Act.

What is filibuster’s future?

Broadly speaking, congressional Republicans tend to favor maintaining the Senate filibuster, while congressional Democrats tend to favor at least making it harder to deploy and easier to overcome, if not abolishing it entirely.

Nevertheless, the Senate tends to be quite institutionally conservative, much more so than the House of Representatives, where myriad rules are changed or added at the beginning of every new Congress. In the current makeup of the Senate, this means that a few red- and purple-state Democrats – most notably Joe Manchin of West Virginia – are the hinges on which any effort to reform the filibuster must turn.

All of these reform proposals rest on the premise that the burden should be on the filibustering party to maintain their obstruction, not on the supporters of a bill to overcome that obstruction. One common idea, for example, is to require a “talking filibuster,” whereby a measure’s opposition must actually hold the Senate floor to prolong debate indefinitely, rather than simply waiting for the bill’s supporters to produce 60 votes.

The talking filibuster, though, is not likely to be enough to overcome obstructionism, as the filibustering party could rotate speakers endlessly. To put more of a burden on the filibustering group, another proposal is to require 41 opposition senators to be on the floor at all times during the filibuster – a much higher bar to meet over an extended period of time.

A conceptually similar idea would change the standard from three-fifths of total senators needed to invoke cloture to just three-fifths of present-and-voting senators. In other words, if all 50 current Senate Democrats were present on the floor, ready to close debate on a bill, the Republicans would need to marshal at least 34 of their own on the floor (making the 50 Democrats less than three-fifths of present-and-voting Senators). While this is certainly not impossible, it is a much higher bar, and Democrats would likely be able to catch Republicans unprepared eventually.

Most Democrats – including President Biden – have indicated their support for reforms that would put the burden of the filibuster on the minority rather than the majority. Senator Manchin, though, has signalled his opposition to most plans. In April, after cryptic statements regarding his position, Manchin categorically rejected the push spearheaded by Senator Jeff Merkley of Oregon to require 41 votes to sustain the filibuster.

The “talking filibuster” and “present-and-voting” standards are, in fact, the way things were in the Senate for most of the filibuster’s history. As such, reform proponents hoped that these Senate-traditionalist reforms could convince Democratic holdouts like Manchin. Not so, apparently.

With a sweeping legislative agenda largely stalled by the prospect of the Senate filibuster, this once-obscure and rarely-employed procedure has become one of the most salient issues of the early Biden administration. Its future is uncertain, and reformers may have to go back to square one to come up with a proposal that Senator Manchin and other Democratic centrists might support.

After Manchin’s announcement, for example, Senate Majority Leader Chuck Schumer (D-NY) asked Democrats to seek out Republican cooperation on policy initiatives, hoping that a demonstrated lack of willingness to compromise by GOP senators would convince wary Democrats like Manchin to support filibuster reform.

Whatever the results of this strategy, pressure from the majority of congressional Democrats – not to mention from a White House that wants to see its agenda advanced in Congress – will ensure that the issue will not simply fizzle out until either reforms are adopted or Republicans win a majority in one or both houses of Congress in 2022.

Learn more

Brennan Center – The Case Against the Filibuster

The Heritage Foundation – Understanding the Filibuster

Rolling Stone – How Democrats Learned to Stop Worrying and Love Nuking the Filibuster

Teddy David

Teddy (’22) is a history major and French correlate with an interest in art history. He works as an editorial intern for the International Enforcement Law Reporter, writing on world events from a legal angle. Teddy is from New York City, and he enjoys classical music, reading history, and spending time with family.