Democrats are more motivated than ever to repeal the Senate filibuster in order to help Joe Biden enact his legislative agenda over Republican opposition.
The idea of ending the upper chamber’s procedural tool for obstruction has gained heavyweight support recently, including from former President Barack Obama and liberal Vermont Sen. Bernie Sanders. Biden’s new running mate, California Sen. Kamala Harris, said during her run for the White House that she, too, favors undoing senators’ ability to filibuster legislation.
Below is a guide to the filibuster, including its purpose and history, what Biden thinks about it, how it could be repealed, and what Democrats would seek to accomplish by killing it.
WHAT IS A FILIBUSTER? The filibuster allows the minority party to block legislation by extending debate. Any senator can object to the legislation and hold it up with lengthy floor speeches.
The term filibuster originates from a Dutch word meaning “pirate,” according to the Senate’s official website. It became popularized in the 1850s.
In its early years, representatives in the House, as well as senators, could filibuster.
During the 19th century, the House actually had more obstruction, according to Gregory Koger, the author of Filibustering: A Political History of Obstruction in the House and Senate and a University of Miami professor.
But revisions to House rules later limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on issues.
HAVE THERE BEEN PREVIOUS ATTEMPTS TO REIN IT IN? Yes. Until 1917, there was no rule to end a debate that had been extended.
In 1917, President Woodrow Wilson grew frustrated after the Senate stymied his proposal to arm merchant ships as a deterrent to keep the United States from the war in Europe. At Wilson’s behest, the Senate adopted the cloture rule, which allows the chamber to end a debate with a two-thirds majority vote.
“Several presidents have criticized and campaigned against it,” Kroger told the Washington Examiner, adding President Harry Truman to the list.
Wilson blamed the filibuster for causing the Senate to be “the only legislative body in the world which cannot act when its majority is ready for action.” Instead, a “little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”
Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain.
The filibuster was later notoriously used by senators from the South to block civil rights legislation. Republican Sen. Strom Thurmond of South Carolina spoke for a record 24 hours and 18 minutes in an attempt to halt the passage of the Civil Rights Act of 1957.
In 1975, the Senate reduced the number of votes required to cut off debate from two-thirds to 60%, or 60 votes.
WAIT, HASN’T THE SENATE ALREADY GOTTEN RID OF SOME FILIBUSTERS? Yes, but not for legislation — only for confirming presidential nominees.
In 2013, Senate Democrats led by Majority Leader Harry Reid of Nevada used the so-called nuclear option to abolish the filibuster for all presidential nominations except for the Supreme Court, after Republicans blocked Obama’s picks for the D.C. Circuit Court.
In 2017, Republicans used the same process to end the filibuster for the Supreme Court, paving the way for President Trump’s nominees Neil Gorsuch and Brett Kavanaugh to be confirmed.
The legislative filibuster still stands, but it’s been a target of recent attacks even before the 2020 presidential campaign — from Trump himself.
He issued a series of tweets in 2017 declaring the legislative filibuster “outdated” and “ridiculous” calling on Senate Majority Leader Mitch McConnell to repeal it to ease the passage of healthcare and tax-cut bills.
McConnell said he disagreed with Trump and countered the GOP did not have the votes to repeal it.
WHAT’S THE DEFENSE OF THE FILIBUSTER? “From the perspective of supportive Senators, the filibuster is a better way to make decisions than simple majority rule,” Kroger said. “Allowing the minority to filibuster generally has promoted bipartisan compromises and policy moderation, so you are more likely to get laws enacted and accepted by broad segments of the population, and they become more or less permanent or more or less stable.”
A number of Senate Democrats have come to the filibuster’s defense in recent days, saying the tradition allows for better representation of the entire country, rather than just the majority party. Others expressed concern Republicans could more easily pass their agenda if they retake power with the filibuster gone. Republicans, too, have cautioned Democrats against eliminating the filibuster.
WHAT’S DIFFERENT NOW? Democrats say Republicans have not used the filibuster in good faith, especially during the Obama administration. They accuse Republicans of abusing the process to block a host of big Democratic priorities, such as gun control and climate change.
“The filibuster is a rule that is meant to go along with a set of norms of bipartisan cooperation, a commitment to open debate and good-hearted negotiations,” Kroger said. “Democrats thought we were not seeing that from Republicans.”
WHAT’S ON THE AGENDA WITH NO FILIBUSTER? Virtually everything on the Democratic wish list.
Democratic sources ticked off a host of issues that could be ripe for majority-rules approval, including investing in infrastructure to bolster economic recovery from the coronavirus, policing reforms such as banning chokeholds and no-knock warrants, updating the Voting Rights Act, granting D.C. statehood, raising the minimum wage, providing “free college for most,” and establishing a pathway to citizenship for immigrants in the country illegally.
Climate change, a long-contentious issue, has been an especially appealing target for activists.
Harris, Biden’s running mate, said during her presidential campaign that if “Republicans continue to block progress, I’ll get rid of the filibuster to pass a Green New Deal.”
Obama, speaking last month at the funeral for Georgia Rep. John Lewis, cited stalled progress on expanding voting rights for his interest in ending the filibuster, deeming the tool a “Jim Crow” relic.
It’s also important to note that some of these policies could be passed on a simple majority without jettisoning the filibuster, using reconciliation. Reconciliation is a procedural tool that allows for the passing of fiscal measures with a simple majority and could be a good fit for passing something such as a carbon tax to combat climate change.
Much of the major legislation the past decade passed via reconciliation. Republicans in 2017 tried to use reconciliation to repeal Obamacare but failed thanks to a divide within the party. They did successfully use it to enact the 2017 tax overhaul. Democrats used reconciliation in part to ease the passage of Obamacare in 2010.
WHERE DOES BIDEN STAND? Kroger said his research has shown Biden did not talk about the filibuster much during his time in the Senate from the 1970s until 2008.
But he is known as an institutionalist who appreciates bipartisanship, and early on in his presidential campaign, he said he did not support scrapping it. He changed course in July, saying he’d “take a look at” ending the filibuster if Republicans become too “obstreperous” in opposition.
HOW COULD DEMOCRATS ACTUALLY REPEAL IT? The most straightforward way is when Congress adopts its rules at the start of a new session, so in this case, January 2021. At that time, Democrats with control of the Senate could pass a change to lower the threshold for cloture to below 60 votes. But that requires the support of two-thirds of the members present and voting, according to Molly Reynolds, a senior fellow of governance studies at the Brookings Institution.
Democrats also could use the aforementioned nuclear option, where a majority of senators can vote to break the Senate’s rules, by setting a new “precedent.”
Kroger said Democrats might not outright repeal the filibuster, but instead could reform it. “This is not a binary thing, you eliminate it or not,” Kroger said. “We will likely end up with something in-between.”
One option would be to get rid of the 60-vote threshold on the “motion to proceed,” the procedural vote that enables the Senate to begin considering a bill.
“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,” Reynolds wrote in a post last year.
WOULD ENDING THE FILIBUSTER REALLY LEAD TO LEGISLATIVE BREAKTHROUGHS? Supporters of the filibuster say no. If Democrats win the Senate, they would likely do it by winning red-leaning states’ senators and would maintain only a small majority.
“Democrats don’t agree on everything, especially when you have a bill with winners and losers in front of you,” said James Wallner, a senior fellow at the R Street Institute and former executive director of the Senate Steering Committee.
Wallner argues the filibuster is not the cause of Senate gridlock, instead blaming a recent trend in Congress toward having the party’s leaders negotiate big bills behind closed doors while limiting debate.
“The Senate is supposed to be a crucible of conflict where people adjudicate their claims,” Wallner told the Washington Examiner. “If their intent is to put a bill on the floor, file cloture, wait two days, and then pass it, it might be hard to pass legislation like that. That’s not the filibuster’s fault.”
