Filibuster or bust: How Senate Democrats could get rid of the filibuster
President Obama surprised Washington when he called on the Senate to get rid of the filibuster in his eulogy for Congressman John Lewis, calling it a "Jim Crow relic" that has long impeded the advancement of civil rights.
Other prominent Democrats in the Senate, including some former presidential candidates, have also called for eliminating the filibuster as they sought to pass voting rights legislation or a bill to establish Washington, D.C., as a state.
Presumptive Democratic presidential nominee and former Delaware Senator Joe Biden recently suggested he was open to ending the filibuster, "depending on how obstreporous" Republicans are, "you're just going to have to take a look at it," he said in July. His new running mate, California Senator Kamala Harris, has also expressed a willingness to get rid of it, in order to pass the Green New Deal, she said last year during a CNN town hall on climate change.
If Democrats retake the Senate with a slim majority in November, eliminating it would make it easier for them to pass their legislative priorities with a simple majority.
What's a filibuster?
To the average American, the filibuster may just seem like another incomprehensible Senate tradition. The term itself is dry and fussy, stemming from a Dutch word for "pirate," but it nonetheless has been shaping legislation for nearly two centuries.
In 1806, shortly after he shot and killed Alexander Hamilton in a duel, Aaron Burr, the sitting vice president, spoke on the Senate floor and called on senators to streamline their rules by eliminating the "previous question" motion. This rule allowed a simple majority to vote on end debate, thereby forcing a vote on passage of a bill. By removing this rule, measures could essentially be stalled indefinitely by unending floor speechifying. However, the filibuster maneuver didn't come into popular use for a few decades.
Though the filibuster has never been eliminated, there have been efforts to rein it in. In 1917, the Senate adopted the cloture rule, enabling two-thirds of senators present to vote to end debate. Almost 60 years later, in 1975, that high bar was lowered to three-fifths, or 60 senators, if all 100 are present. Filibusters no longer require senators to take the floor and speak for hours, though, as famously demonstrated by Jimmy Stewart in the 1937 film "Mr. Smith Goes to Washington."
The filibuster has had a moderating influence in that the requirement of a supermajority to move a bill means it must have bipartisan support to pass, increasingly rare in today's divided Congress.
Is the filibuster a "Jim Crow relic"?
While the use of the filibuster long predates the Jim Crow laws of the 20th century, it was used extensively by senators from the South to block civil rights legislation.
The longest filibuster took place in 1957, when South Carolina Senator Strom Thurmond spoke for 24 hours and 18 minutes to protest the passage a civil rights bill. And in 1964, Senator Robert Byrd spoke for 14 hours and 13 minutes in an attempt to block the Civil Rights Act.
Mr. Obama is arguing that the tactic is being used to similar ends now and is calling on the Senate to eliminate the filibuster to ease the way to new voting rights legislation. The House passed the Voting Rights Advancement Act nearly two years ago, which would allow federal oversight for for state and local jurisdictions that enact voting restrictions which disproportionately affect people of color. The bill would restore the protection provided by the 1965 Voting Rights Act which was struck down by a 2015 Supreme Court decision. If the legislation needed only a simple majority to pass, proponents of ending the filibuster argue that a Democrat-led Senate could advance it without the support of Republicans.
The voting rights legislation passed in the House hasn't even been considered in the Senate because Senate Majority Leader Mitch McConnell has refused to bring it up for a vote.
Gregory Koger, a professor of political science at the University of Miami and the author of "Filibustering: A Political History of Obstruction in the House and Senate," says eliminating the filibuster wouldn't end Senate's gridlock.
"To switch to single majority cloture is not an antidote to the broader problems the Senate is facing," Koger said.
Koger pointed to other ways for the minority to obstruct Congress without the filibuster, like calling for a cloture vote for every single bill under consideration. Though a simple majority would be able to defeat cloture, it would still impose significant delays in legislating.
How does a filibuster happen?
When the Senate majority leader or another senator seeks to end debate on a motion, he or she calls for "unanimous consent" to see if all 100 senators are willing to end debate and vote. If one senator objects, a cloture motion, which requires 60 votes, must be filed. If fewer than 60 senators support it, the bill fails. Voilà, you have a filibuster.
The filibuster was used in August when Senate Minority Leader Chuck Schumer tried to bring The House-passed coronavirus relief bill to the floor. Republicans blocked it. Then, Senate Majority Leader Mitch McConnell brought up Senate Republicans' relief bill, and Democrats blocked it. Though there was likely simple majority support for one of those bills, the filibuster stopped either from receiving a vote. Minimal drama, maximum obstruction.
How would the Senate get rid of the filibuster?
There is an easy way, and there is a hard way. Senators would likely choose the easy way, but here's the hard way, just for kicks.
The Senate could formally change the text of Rule 22, which is the rule that requires 60 votes to end debate on a measure. But ending debate on a resolution to change the Senate's rules would require support from two-thirds of senators, and it's highly unlikely that 67 senators would agree to changing the Senate rules to eliminate the filibuster.
That leaves the easy way, a procedural move colloquially and melodramatically known as the "nuclear option." A new Senate precedent can be created when a senator raises a point of order, or states that a Senate rule is being violated. If the presiding officer agrees, a new precedent is established. If the presiding officer disagrees, another senator can appeal the ruling, and a simple majority can overturn the presiding officer's ruling and create a new precedent.
It's been done before. In 2013, Senate Majority Leader Harry Reid invoked the nuclear option to end filibusters for all presidential nominations except for Supreme Court nominations, after Republicans blocked Mr. Obama's nominations to the U.S. Court of Appeals for the D.C. Circuit.
In 2017, the Republicans, now back in control of the Senate, struck back and used the nuclear option to end filibusters for the Supreme Court nomination of Robert Gorsuch, and then again in 2018 for Brett Kavanaugh's nomination.
In 2019, the Senate went "nuclear" again, voting to slash debate time for some nominees from 30 hours to two hours. By June, the Senate had confirmed 200 of President Trump's judicial nominees.
The text of Rule 22 never changed, but precedent — how the rule was interpreted — did.
"Every time the Senate uses the nuclear option, it makes it easier for the next majority to use it," said Sarah Binder, a senior fellow in Governance Studies at the Brookings Institution and professor of political science at George Washington University.
It's not guaranteed that Democrats would be able to change the precedent, even if they did regain the Senate majority. In 2013, three Democrats voted against it. And in 2017, Democratic Senator Chris Coons and Republican Senator Susan Collins wrote a letter signed by 61 senators advocating the preservation of the filibuster.
But several Democratic senators are now supporting its elimination, and Coons has also had a change of heart, telling Politico that he would not "stand idly by for four years and watch the Biden administration's initiatives blocked at every turn."
Koger said that it is unlikely eliminating the filibuster for legislation as well as nominations could be subject to judicial review. Under Article I of the Constitution, the Senate has the power to interpret its own rules, meaning that the Supreme Court would probably not intervene.
Why should there be a legislative filibuster?
"Legislators can find a lot of value in the ability to obstruct," Koger said. In addition to giving the minority a voice, it allows individual senators to block legislation that they feel is detrimental to their constituents. For example, Nevada senators for decades employed the filibuster to block the creation of a nuclear waste dump in the state.
Koger also says that using the filibuster "tends to lead to moderate outcomes." A Democratic Congress could enact single-payer health care. Then, when Republicans retake the majority, they could reverse that decision. The filibuster can often prevent vast swings in policy.
"The classic argument for obstruction is that it forces parties to negotiate with each other and leads to more incremental changes in policy," Koger explained.
The filibuster can also be politically helpful to lawmakers in the majority. For example, a Democratic lawmaker could run on a promise to enact the Green New Deal while in Congress. The lawmaker would know that there was no way it could actually pass. Therefore, the lawmaker could keep the promise by advocating for the Green New Deal, without ever being truly accountable for its passage.
"Supermajority rules are helpful to majorities. They allow them to blame the minority," Binder said.
What are the arguments for eliminating the legislative filibuster?
Opponents of the filibuster argue that it gives the minority too much power. Americans elected a party into the majority for a reason - because they want to see their agenda enacted. If the minority party blocks that agenda, the thinking goes, it is subverting the will of the American people.
In the Federalist Papers #22, Alexander Hamilton warned against an overly powerful minority. "To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser," Hamilton argued.
Binder said that "exploitation of these lax Senate rules has gone too far to stymie the ability of the Senate to legislate," such that "even a popular majority can't pursue its policy goals."
"The history of the filibuster often allows small minorities to block majorities in ways that certainly have been harmful...to African-Americans in the United States," she said, referring to the filibusters against civil rights legislation.
But this is all speculation, since it's unclear whether a Democratic majority actually would eliminate the legislative filibuster. Binder notes, however, that the history of the Senate "has really been a gradual march towards majority rule."
"If the majority is not unified enough on what it wants to do, then I don't think they're going to nuke the legislative filibuster," Binder said. "It's hard to get the toothpaste back in the tube."