Depending on whom you ask, the filibuster is either a barrier to a just society or the only thing keeping the Senate from descending into pure anarchy. What’s certain is that the ability of the Senate to enact Joe Biden‘s legislative agenda, from extending the child tax credit, enacting climate change legislation, passing gun control bills, the Equality Act, the Violence Against Women Act, and the Voting Rights Act, to future COVID relief bills, is inextricably linked to the fate of the filibuster.
And since Joe Biden’s legislative agenda is chock full of proposals that will affect American families directly, understanding the filibuster is a necessary step to understanding what, if anything, the federal government is going to do for American families over the next two years.
Here’s everything you need to know about the past, present, and future of the filibuster.
What is the filibuster?
According to the official Senate glossary, “filibuster” is 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.”
Under current Senate rules, it takes 60 members to end a filibuster in what’s called a cloture vote. That means that at least 60 members need to support certain legislation, like, say, tax hikes on the wealthy, otherwise the bill can be blocked, or delayed, from being passed.
That means that unless ten members defect (unlikely), Mitch McConnell can stop the Democratic majority (just 50 senators plus the tie-breaking vote of Vice President Harris) from advancing any legislation, with some exceptions.
When does the filibuster not apply?
Certain budget, spending, and debt-limit legislation can be passed under budget reconciliation, the process that requires a simple majority that Democrats used to pass the American Rescue Plan Act (ARPA).
In the face of adamant Republican opposition, sight unseen, to all of President Obama’s judicial nominees, then-Senate Majority Leader Harry Reid eliminated the filibuster on non-Supreme Court federal judges in November of 2013. Mitch McConnell did the same for the Supreme Court during the Trump administration.
But the vast majority of legislation, including all of the Democrats’ current legislative priorities, is subject to the filibuster. This means that if Mitch McConnell can keep his caucus together, he keeps the Democrats from passing almost anything that the Democrats promised voters. And the fact that Senate Republicans represent 41,549,808 fewer people than Senate Democrats makes it a powerful antimajoritarian tool as well, subjecting the will of the voters to minority rule.
What kind of reforms to end, or fix, the filibuster are being proposed?
Many Democratic lawmakers are pushing for the outright abolition of the filibuster. They see midterm elections, which are historically awful for the president’s party, in two years and know that the only chance Democrats in the Senate have to pass DC and Puerto Rico statehood bills, tax increases on the wealthy, common-sense gun control legislation, federal child care programs and funding, the Voting Rights Act, and other laws anathema to the Republicans is to get rid of the filibuster and pass what they can with their 50+1 majority.
But even though the stakes couldn’t be higher and the filibuster has only existed in its current form (i.e. with cloture) since 1917, there isn’t much of an appetite to abolish the filibuster among centrist Democrats. We can only speculate as to their motivations—fear of being unable to stop the GOP if and when it regains the majority, fear of being seen as manipulating the legislative process unfairly.
A more moderate course is to return to the talking filibuster. This is the Mr. Smith Goes to Washington-style rule that the Senate eliminated in the 1970s, causing an increase from fewer than 50 filibusters a year to more than 250 before Obama left office, according to the Los Angeles Times. Making the “talking filibuster” the rule of law again would put the onus on the minority party to continue to speak — and if they stopped for any reason, the majority party could simply vote to advance their legislation. While it’s still a huge time-suck, it could cut down a lot on what does, and doesn’t, get filibustered.
Biden came out in support of the talking filibuster in a recent interview with ABC News, and even Joe Manchin, the Democratic senator perhaps least likely to support filibuster reform, has said that he is open to making the filibuster “a little bit more painful” for the minority by making senators “stand there and talk.”
Other potential reforms include preventing the filibuster from being used on particular motions like, say, the motion to proceed to debate on a bill. They could also weaken the Byrd Rule, the rule that limits what can be included in budget reconciliation, to make more kinds of legislation eligible for that process.
How could the Democrats change the filibuster?
A simple majority vote could establish a new Senate precedent, a maneuver that’s easier than changing the rules but that has essentially the same effect. This is how Reid and McConnell changed the filibuster rules for judicial nominees.
What’s going to happen?
The short answer is that no one knows, but it probably depends on the next big piece of legislation that comes to the Senate via the regular process and not budget reconciliation. One candidate is HR 1, the For the People Act, which would expand voting rights, establish new ethics laws for federal officeholders, and reduce the influence of money in politics.
The filibuster was a favorite tool of segregationists in the Senate in the ’50s, who used it to block civil rights legislation, so positioning a voting rights bill as the one that necessitates its end makes sense from a messaging perspective.
But Democrats need every member to endorse reform. That Biden and Manchin are open to it on some level is a big victory, but other conservative Democrats and those who’ve been in the chamber for a long time and see the filibuster as an important part of the institution still need to be convinced for any kind of reform — and any kind of ambitious legislation — to become reality.