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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 \u2014 and as it stands today, break \u2014 ambitious laws, from voting rights<\/span>,<\/span> to infrastructure<\/span>,<\/span> 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.<\/span><\/p>\n What is the <\/b>F<\/b>ilibuster?<\/b><\/p>\n The Senate <\/span>defines<\/span><\/a> the \u201cfilibuster\u201d as an \u201cinformal 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.\u201d According to Professor Kenneth Mack, \u201cwhat we call the filibuster is simply an interpretation\u201d of the Senate\u2019s <\/span>Rule 22<\/span><\/a>,<\/span> which structures Senate motions and dates back to 1806. But the practice has changed drastically since then.<\/span>\u00a0<\/span><\/p>\n 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. <\/span>Cloture<\/span><\/a> is currently the only option through which the Senate can put a time limit on a bill\u2019s 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 \u2013 a majority \u2013 are technically needed to advance uncontroversial legislative bills (i.e. those advanced via \u201cunanimous consent\u201d 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.\u00a0<\/span><\/p>\n 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. <\/span>Any senator can <\/span>trigger<\/span><\/a> a filibuster after notice is given, usually first to the party leadership. Simply standing up and saying \u201cI object\u201d 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 <\/span>kill<\/span><\/a> legislation.\u00a0<\/span><\/p>\n How Has the Filibuster Been Used Historically?<\/b>\u00a0<\/span><\/p>\n While the filibuster took the spotlight in the hit 1939 <\/span>film<\/span><\/a> \u201cMr. Smith Goes to Washington,\u201d it has come a long way since a political newcomer utilized it to kill a corrupt senator\u2019s grifting bill. In real life, it has been leveled by the Senate\u2019s minority party against the majority on a host of issues ranging from global affairs and national security to presidential conduct and domestic policy.\u00a0<\/span><\/p>\n The Senate filibuster was <\/span>not devised<\/span><\/a> 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, <\/span>according<\/span><\/a> to political scientist Gregory Koger. Despite this and the fact that filibustering also occurred during the Continental Congress, the Founders\u2019 views on the practice ranged from indecisive to pessimistic.\u00a0<\/span><\/p>\n While James Madison <\/span>referred<\/span><\/a> 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\u2019s will in <\/span>Federalist Paper 58<\/span><\/a>, writing that such a practice \u201c<\/span>leads more directly to public convulsions, and <\/span>more ruin of popular governments[.]\u201d He added that it could \u201cextort unreasonable indulgences\u201d and potentially compromise the \u201c<\/span>fundamental principle of free government[.]\u201d <\/span>George Mason, who was more optimistic about the effect of the minority\u2019s blocking procedures, noting that fear about their occurrence could invigorate the governing process, nonetheless admitted that filibusters could prompt \u201cinconveniences.\u201d\u00a0<\/span><\/p>\n In the modern era, the filibuster was unsuccessful in <\/span>reversing<\/span><\/a> the censure of former President Andrew Jackson, but successfully delayed the <\/span>arming<\/span><\/a> of merchant ships against German U-boats and defeated the ratification of the <\/span>Treaty of Versailles<\/span><\/a> during World War I. Historically, the filibuster played an <\/span>ugly role<\/span><\/a> in upholding <\/span>slavery<\/span><\/a>: <\/span>Professor Mack notes that one of the filibuster\u2019s \u201cprincipal uses in the nineteenth century was as a means of protecting the interests of slaveholders.\u201d It was also infamously weaponized by Southern conservative Democrats of the 1950s and 1960s era to <\/span>preserve<\/span><\/a> discriminatory laws, like <\/span>Jim Crow<\/span><\/a> laws, as it was prominently invoked to delay the passage of anti-lynching, integration, civil rights, and voting protection bills.\u00a0<\/span><\/p>\n Why is the Filibuster Controversial?<\/b><\/p>\n Proponents of the filibuster <\/span>contend<\/span><\/a> 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 \u2014 suppressing debate and preventing popular bills that benefit Americans from seeing the light of the Senate floor.\u00a0<\/span><\/p>\n 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, <\/span>wrote<\/span><\/a>: \u201cWith 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.\u201d This point is especially poignant as restrictive voting measures, some which have outsized <\/span>impact<\/span><\/a> or directly <\/span>target<\/span><\/a> minorities, have been proposed.<\/span><\/p>\n And the stakes are high: look to the contentious fight over voting rights currently waging at the state and federal level. State legislatures recently <\/span>proposed<\/span><\/a> roughly <\/span>250<\/span><\/a> voting restriction laws. These actions are a <\/span>response<\/span><\/a> to falsehoods about widespread voter fraud meant to cast doubt on the legitimacy of the 2020 election, which election officials dubbed \u201c<\/span>the most secure in American history<\/span><\/a>.\u201d An Arizona <\/span>bill<\/span><\/a> goes as far as to allow the <\/span>l<\/span>egislature 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 \u2018protect the vote,\u2019 Arizona State Rep. John Kavanagh (R-D. 23) <\/span>told<\/span><\/a> reporters that \u201cRepublicans are more concerned about fraud, so we don\u2019t mind putting security measures in that won\u2019t let everybody vote \u2014 but everybody shouldn\u2019t be voting\u2026 we have to look at the <\/span>quality of votes.\u201d<\/span><\/p>\n More broadly, supporters of ending or reforming the filibuster point to the popularity of legislation that Democrats \u2013 the Senate majority \u2013 have proposed, and that Republicans have vowed to oppose on principle. They cite the $1.9 trillion Covid-19 <\/span>relief bill<\/span><\/a> that passed in March as a fresh example. Its provisions \u2014 from $1,400 stimulus checks, funding for K-12 schools, larger tax credits for families, and aid to local and state governments \u2014 earned high approval <\/span>ratings<\/span><\/a> from Americans (<\/span>66%<\/span><\/a> of voters thought the legislation would help the economy, which the pandemic seriously harmed, with especially stark consequences for Americans who are <\/span>low-income<\/span><\/a>, <\/span>young or new to the workforce<\/span><\/a>, <\/span>of color<\/span><\/a>, and <\/span>women<\/span><\/a>). <\/span>Zero<\/span><\/a> congressional Republicans voted for the bill, despite support from <\/span>41%<\/span><\/a> of Republican voters. A blow against the argument that filibusters encourage productive debate, <\/span>57%<\/span><\/a> 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 <\/span>December 2020<\/span><\/a> 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.<\/span><\/p>\n How Does the Filibuster Affect Democracy?<\/b>\u00a0<\/span><\/p>\n 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 <\/span>campaign finance<\/span><\/a> and <\/span>policing<\/span><\/a>, provide a path to citizenship for <\/span>Dreamers<\/span><\/a>, and quell LGBTQ+ <\/span>discrimination<\/span><\/a>, but they have stalled in the narrowly divided Senate where <\/span>opposition<\/span><\/a> is <\/span>fierce<\/span><\/a> within the <\/span>minority<\/span><\/a> party. The bills at issue carry could have changed millions of lives. <\/span>The filibuster, by implication, is a Senate institution that functions to obstruct representative democracy.\u00a0<\/span><\/p>\n Polling shows that a majority of Americans support this legislation advanced by the congressional majority (currently, Democrats). <\/span>Nine months prior to the House advancing the <\/span>American Dream and Promise Act<\/span><\/a>, a Pew poll found that <\/span>74%<\/span><\/a> 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 <\/span>89%<\/span><\/a> 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.\u00a0<\/span>\u00a0<\/span><\/p>\n What Comes Next?<\/b><\/p>\n While the filibuster appears secure for now based on the <\/span>reluctance<\/span><\/a> 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 <\/span>Barack Obama<\/span><\/a>, Senate Majority Leader <\/span>Chuck Schumer<\/span><\/a> (D-NY)<\/span>, 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 \u201c<\/span>talking filibuster<\/span><\/a>\u201d 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\u2019s comment that Biden is \u201copen to hearing\u201d ideas on the subject. Although the reform process could be <\/span>complicated<\/span><\/a>, options are on the table. As examples of potential reforms, (1) senators who refuse to vote for cloture could trigger a <\/span>suspensatory<\/span><\/a> rather than a total veto or (2) the Senate could <\/span>change<\/span><\/a> 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 <\/span>potential<\/span><\/a> changes that could be explored.<\/span><\/p>\n On the other side of the aisle, Senate Minority Leader Mitch McConnell (R-KY) promised \u201c<\/span>scorched Earth<\/span><\/a>\u201d if the filibuster process were to be changed, reviving memories of <\/span>obstructionism<\/span><\/a> and skepticism that tensions could possibly escalate further after his <\/span>tenure<\/span><\/a> as majority leader. McConnell previously <\/span>resisted<\/span><\/a> 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 <\/span>reform<\/span><\/a> the filibuster or allow it to remain in place barring further developments.\u00a0<\/span>\u00a0<\/span><\/p>\n Christina Coleburn is a first-year student at Harvard Law School. Follow her on Twitter: @C_Coleburn.<\/span><\/i><\/p>\n","protected":false},"excerpt":{"rendered":" By Christina Coleburn | March 21, 2021 As legislative battles rage in Congress, discussions about the future of […]<\/p>\n","protected":false},"author":2073,"featured_media":251,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"categories":[7],"tags":[17,15],"class_list":["post-250","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-issue-explainer","tag-filibuster","tag-hr1"],"jetpack_featured_media_url":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/files\/2021\/03\/IMG_5400.jpeg","_links":{"self":[{"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/posts\/250","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/users\/2073"}],"replies":[{"embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/comments?post=250"}],"version-history":[{"count":0,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/posts\/250\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/media\/251"}],"wp:attachment":[{"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/media?parent=250"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/categories?post=250"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/equaldemocracy\/wp-json\/wp\/v2\/tags?post=250"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}