A Senate voting rights bill, SB1, has recently renewed debates over the filibuster. Long used as a method for delaying or inhibiting action on a bill, the filibuster is under the microscope once again with a 50-50 Senate and President Joe Biden looking to pass key parts of his agenda.
What is a filibuster?
A filibuster is “endless debate,” says Stephen Medvic, professor of government at Franklin & Marshall College. It’s a strategy used by a minority party or faction to stall passage of legislation in the Senate (and only in the Senate, not in the House).
According to the United States Senate website, “The tactic of using long speeches to delay action on legislation appeared in the very first session of the Senate.” In the mid-1800s, the tactic was given the name “filibuster.”
In 1917, a way to end a filibuster — called cloture — was adopted as a Senate rule. Originally it required a 2/3 majority vote to end the debate and move to a vote on the legislation. In 1975, according to the U.S. Senate website, this was reduced to a 3/5 majority “of all senators duly chosen and sworn,” so now 60 senators need to vote in favor of ending a filibuster, thus invoking cloture.
This essentially changed the number of votes needed to get a bill through the Senate. To pass legislation, only a simple majority of Senators need to vote in favor of the bill; however, a filibuster can stall legislation before it even gets to that point, requiring 60 votes to move the Senate past the filibuster to vote on the bill.
While filibusters used to entail lengthy monologues, the “silent” filibuster now dominates. “Talking” filibusters would occupy the Senate for days, preventing action on any other measures. Medvic explains, “The Senate decided for the sake of being able to move on and do other business, let’s just let you essentially issue a filibuster and not have to stand there and debate it.”
In 2013 and 2017, two other alterations to the filibuster were approved by the Senate. The 2013 change allows a simple majority vote to confirm appointees to executive and judicial positions, not including the Supreme Court. In 2017, the rule was amended again to allow a simple majority to approve Supreme Court nominees, as well.
Although cloture is the main way to end a filibuster and move the Senate to vote on a bill, there are some workarounds that politicians have used in the past. One is using reconciliation to incorporate policy into the budget, as Democrats recently did to approve President Biden’s COVID-19 relief plan.
Budget bills can’t be filibustered, Medvic explains, so politicians can use them to pass budget-related legislation. This reconciliation process is typically only used once per fiscal year, but the idea of Biden using it again this year to pass his infrastructure package has been floated.
Just as the Senate decided budget bills were too pressing to filibuster, it could also take the same approach to other legislation. But instead, Medvic says, what typically ends up happening is the majority “gives up” when it can’t garner the necessary 60 votes. This allows the filibuster to stand, and the Senate moves on to other issues without making a decision on the filibustered legislation.
Arguments in support of the filibuster
The filibuster is viewed by proponents as a check on majority power that gives minority parties or factions a say in legislation, Medvic explains. This is one reason why Sen. Joe Manchin (D-W.Va.) doesn’t want to get rid of it.
Others see it as a tool for compromise, forcing the majority party to work with the minority to get a bill through the Senate.
Senate Republican leader Mitch McConnell recently warned of a “scorched earth Senate” if the filibuster were to be eliminated by current Democratic politicians, saying that the chamber would be “like a hundred car pileup, nothing moving.”
In that same speech, McConnell brought up another argument in favor of the filibuster: without it, the policy pendulum could swing back and forth each time a new party gains the majority, which happens often. The party newly in power would undo legislation passed by the previous majority and replace it with new policies, and this would happen over and over again with each majority shift.
Arguments against the filibuster
Detractors of the filibuster argue that it forces the Senate into inaction and is used to inhibit passage of popular legislation, preventing a majority of politicians — elected by a majority of voters — from passing bills favored by a larger share of voters and politicians alike.
It only takes one person to start a filibuster, but 60 votes are needed to end it and move to a vote. The last time the majority party in the Senate held more than 60 seats was in the 95th Congress from 1977-1979 when Democrats held 61 seats, according to data on the U.S. Senate website.
Some filibuster critics also note the practice’s ties to racial legislation. Last year, former President Barack Obama referred to the filibuster as a “Jim Crow relic,” a phrase that has been taken up by many others to refer to the policy.
Although the filibuster’s emergence was not related to racial legislation, many have pointed out its ties to civil rights opposition, as it was repeatedly used by southern senators to stall civil rights bills. In fact, the longest talking filibuster in history was conducted by South Carolina Senator Strom Thurmond, who spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957.
How could the filibuster be reformed, and is change possible?
Despite the return of heated filibuster debates, Biden has indicated that he does not want to do away with the filibuster completely, although he has stated a desire to return to “talking” filibusters.
Sen. Manchin has also expressed a similar opinion, saying, “The filibuster should be painful, it really should be painful and we’ve made it more comfortable over the years.” Rather than Senators simply indicating their disagreement with a bill to initiate a filibuster, Biden and Manchin say they should have to stand and speak.
Eliminating the filibuster entirely would require 2/3 of the Senate to vote to change the cloture rule, says Medvic, which is highly unlikely to happen. But there is a workaround that would require fewer Senators to agree: rather than changing the rule, they could change the precedent, as was done in 2013 and 2017.
Medvic explains that senators can propose a policy change, suggesting that only a simple majority should be needed to pass certain kinds of legislation. The chair of the Senate then rules on that proposition. If the chair agrees with the proposal, it goes into effect. If the chair disagrees, then a majority of senators can overrule the chair’s decision.
While this wouldn’t technically eliminate the filibuster in Senate rules, Medvic says that it could essentially get rid of it in practice as the majority party repeatedly decides that certain important pieces of legislation can’t be filibustered.
With the Senate currently divided in half between Democrats and Republicans, the likelihood of eliminating the filibuster through policy or precedent is unlikely with at least two Democratic senators — Manchin and Kyrsten Sinema of Arizona — objecting to getting rid of the practice.