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By Christina Coleburn | March 21, 2021
As legislative battles rage in Congress, discussions about the future of the Senate filibuster have taken center stage. With bills quickly advancing from the House to the Senate under unified Democratic control, political observers are debating whether to keep, weaken, or nix the Senate filibuster altogether. This tool could make or break — and as it stands today, break — ambitious laws, from voting rights, to infrastructure, to immigration from coming to fruition. Through the filibuster, a few senators whose views represent a minority of voters, could effectively kill legislation that would impact and is supported by millions. Under this backdrop, the debate about filibuster reform is experiencing a revival.
What is the Filibuster?
The Senate defines the “filibuster” as an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” According to Professor Kenneth Mack, “what we call the filibuster is simply an interpretation” of the Senate’s Rule 22, which structures Senate motions and dates back to 1806. But the practice has changed drastically since then.
In 1917, the Senate first imposed cloture, a rule that permitted a two-thirds majority to end a filibuster and bring the legislation to vote. Cloture is currently the only option through which the Senate can put a time limit on a bill’s consideration. The cloture rule was modified in 1975 to permit a narrower three-fifths majority, meaning 60 Senators, to terminate a filibuster. While only 51 votes – a majority – are technically needed to advance uncontroversial legislative bills (i.e. those advanced via “unanimous consent” or passed through the budget reconciliation process), the combination of the filibuster and cloture rules creates a high barrier for passage for most legislation: most bills considered in the Senate will need the support of 60 senators to cease debate and reach a vote.
If even one senator acts to extend debate on a bill, then the votes of 60 members are required to move from debate to vote. Any senator can trigger a filibuster after notice is given, usually first to the party leadership. Simply standing up and saying “I object” when fellow senators attempt to advance the legislation is the most common formal step. While the triggering senator could speak about the reason for initiating the filibuster, the senator is no longer required to do so. The filibuster is a powerful tool because without enough votes for cloture, even one senator who uses superfluous motions or refuses to yield the floor during debate can kill legislation.
How Has the Filibuster Been Used Historically?
While the filibuster took the spotlight in the hit 1939 film “Mr. Smith Goes to Washington,” it has come a long way since a political newcomer utilized it to kill a corrupt senator’s grifting bill. In real life, it has been leveled by the Senate’s minority party against the majority on a host of issues ranging from global affairs and national security to presidential conduct and domestic policy.
The Senate filibuster was not devised by the Founding Fathers, nor did they include the existing iteration of the filibuster in the Constitution. The Founding Fathers were, however, aware that the Constitution could embolden a persistent minority to prolong legislation through refusing to vote or holding repeated roll calls, according to political scientist Gregory Koger. Despite this and the fact that filibustering also occurred during the Continental Congress, the Founders’ views on the practice ranged from indecisive to pessimistic.
While James Madison referred to quorum-breaking favorably as it pertained to the Virginia Legislature in August 1787, he later expressed negative views on the practice in his famous writings. Madison was apprehensive about the ability of a minority to block the majority’s will in Federalist Paper 58, writing that such a practice “leads more directly to public convulsions, and more ruin of popular governments[.]” He added that it could “extort unreasonable indulgences” and potentially compromise the “fundamental principle of free government[.]” George Mason, who was more optimistic about the effect of the minority’s blocking procedures, noting that fear about their occurrence could invigorate the governing process, nonetheless admitted that filibusters could prompt “inconveniences.”
In the modern era, the filibuster was unsuccessful in reversing the censure of former President Andrew Jackson, but successfully delayed the arming of merchant ships against German U-boats and defeated the ratification of the Treaty of Versailles during World War I. Historically, the filibuster played an ugly role in upholding slavery: Professor Mack notes that one of the filibuster’s “principal uses in the nineteenth century was as a means of protecting the interests of slaveholders.” It was also infamously weaponized by Southern conservative Democrats of the 1950s and 1960s era to preserve discriminatory laws, like Jim Crow laws, as it was prominently invoked to delay the passage of anti-lynching, integration, civil rights, and voting protection bills.
Why is the Filibuster Controversial?
Proponents of the filibuster contend that it protects the minority party from majority tyranny and encourages productive debate that stifles poor legislation. Critics counter that while this point may be theoretically salient, it flounders in practice under the weight of partisan gridlock and obstructionist realities. Rather than boosting fruitful debate to pass meaningful laws, skeptics assert that the filibuster is abused to yield the opposite result — suppressing debate and preventing popular bills that benefit Americans from seeing the light of the Senate floor.
These types of pro-filibuster arguments are viewed as bad faith to filibuster opponents, juxtaposing their stated concern for the voice of the minority with policies that suppress the voices of voters who determine whether a party will ultimately be in the minority. As political scientists Gregory J. Wawro and Eric Schickler, wrote: “With party lines now corresponding to policy preferences (and ideological groupings) more tightly than in much of American history, the filibuster has become more clearly identified as a key tool of the minority party rather than as a tool used by various types of minorities.” This point is especially poignant as restrictive voting measures, some which have outsized impact or directly target minorities, have been proposed.
And the stakes are high: look to the contentious fight over voting rights currently waging at the state and federal level. State legislatures recently proposed roughly 250 voting restriction laws. These actions are a response to falsehoods about widespread voter fraud meant to cast doubt on the legitimacy of the 2020 election, which election officials dubbed “the most secure in American history.” An Arizona bill goes as far as to allow the legislature to overturn presidential election results cast within the state, giving it the power to invalidate the will of Arizonans and their collective Electoral College power. Reflecting the impact of state efforts to ‘protect the vote,’ Arizona State Rep. John Kavanagh (R-D. 23) told reporters that “Republicans are more concerned about fraud, so we don’t mind putting security measures in that won’t let everybody vote — but everybody shouldn’t be voting… we have to look at the quality of votes.”
More broadly, supporters of ending or reforming the filibuster point to the popularity of legislation that Democrats – the Senate majority – have proposed, and that Republicans have vowed to oppose on principle. They cite the $1.9 trillion Covid-19 relief bill that passed in March as a fresh example. Its provisions — from $1,400 stimulus checks, funding for K-12 schools, larger tax credits for families, and aid to local and state governments — earned high approval ratings from Americans (66% of voters thought the legislation would help the economy, which the pandemic seriously harmed, with especially stark consequences for Americans who are low-income, young or new to the workforce, of color, and women). Zero congressional Republicans voted for the bill, despite support from 41% of Republican voters. A blow against the argument that filibusters encourage productive debate, 57% of Americans thought that the Biden administration worked with congressional Republicans in good faith while 55% said the GOP did not work with the White House in good faith. They also note the huge discrepancy between the scope of the December 2020 relief bill compared to the March 2021 legislation to argue that the filibuster stands in the way of laws that could improve American lives in an unprecedented public health crisis.
How Does the Filibuster Affect Democracy?
The filibuster exacerbates the tension between the will of most Americans and the will, or potential obstruction, of a few elected officials. The House has recently advanced ambitious bills to reform campaign finance and policing, provide a path to citizenship for Dreamers, and quell LGBTQ+ discrimination, but they have stalled in the narrowly divided Senate where opposition is fierce within the minority party. The bills at issue carry could have changed millions of lives. The filibuster, by implication, is a Senate institution that functions to obstruct representative democracy.
Polling shows that a majority of Americans support this legislation advanced by the congressional majority (currently, Democrats). Nine months prior to the House advancing the American Dream and Promise Act, a Pew poll found that 74% of Americans, including 54% of Republicans, favor granting permanent resident status to immigrants who came to the United States as undocumented children. Majorities also favor anti-discrimination protections for transgender people: a June 2020 Kaiser Family Foundation poll reported that 89% of Americans and 77% of Republicans think it should be illegal to fire or refuse to hire transgender people. From the same poll, 88% of Americans and 79% of Republicans believe it should be illegal for doctors to refuse to treat transgender patients.
What Comes Next?
While the filibuster appears secure for now based on the reluctance of Senators Joe Manchin (D-WV) and Kyrsten Synema (D-AZ) to outright eliminate it, ideas for reform have gained traction among many Democrats, including former President Barack Obama, Senate Majority Leader Chuck Schumer (D-NY), and Democrats across the ideological spectrum from moderate Senators John Tester (D-MT) and Amy Klobuchar (D-MN) to more progressive Democrats like Senator Elizabeth Warren (D-MA). President Joe Biden has also joined the growing chorus for reform or willingness to consider it in calling for a “talking filibuster” in a March 16 interview. His statement indicates an increased willingness to consider modifications to the rule and follows White House Press Secretary Jen Psaki’s comment that Biden is “open to hearing” ideas on the subject. Although the reform process could be complicated, options are on the table. As examples of potential reforms, (1) senators who refuse to vote for cloture could trigger a suspensatory rather than a total veto or (2) the Senate could change supermajority voting rules. 60 votes are currently needed to move a debate to a vote. Lowering this threshold or returning to a talking filibuster, which forces senators to hold the floor and speak while they prolong the vote to end debate, are potential changes that could be explored.
On the other side of the aisle, Senate Minority Leader Mitch McConnell (R-KY) promised “scorched Earth” if the filibuster process were to be changed, reviving memories of obstructionism and skepticism that tensions could possibly escalate further after his tenure as majority leader. McConnell previously resisted calls in 2018 from House Republicans to nix the filibuster, foreseeing that the GOP would not always hold the Senate majority. With that prediction now a reality, it remains to be seen whether Democrats will unify to reform the filibuster or allow it to remain in place barring further developments.
Christina Coleburn is a first-year student at Harvard Law School. Follow her on Twitter: @C_Coleburn.