The Filibuster: Partisan Weapon or Protector of the Minority?

Photo Credit: The Atlantic

By Isabela Baghdady
​
​Isabela Baghdady is a freshman in the College of Arts and Sciences at the University of Pennsylvania with plans to study Philosophy, Politics, and Economics.

With Election Day weeks away Senate Republicans are in danger of losing the majority, prompting questions about the future of the Senate filibuster—a long-honored institutional practice that allows a single Senator to extend debate until 60 members agree to move to a vote [1].

In recent decades, the once-obscure measure has become almost common practice, with most bills now requiring a Senate supermajority of 60 votes in order to become law. Yet, as the filibuster becomes increasingly entrenched in Senate procedure, politicians and citizens alike are questioning both its purpose and its implications for American democracy: is the filibuster truly a safeguard for the minority or is it a threat to advancing legislation?

The History of the Filibuster
The filibuster originated in 1806, when the Senate eliminated the antiquated “previous question motion,” a provision from Senate Rules that permitted a simple majority of 51 votes to end debate on a bill [2]. This action allowed the minority party to extend debate and block legislation—giving way to the first filibuster in 1837. Almost a century and a half later in 1975, the number of votes required to end debate—called invoking cloture—was set at 60, three-fifths of the entire Senate population [3]. At its core, the filibuster functioned to prevent the tyranny of the majority by making bipartisanship a requirement for passing legislation [4].

Since then, however, the filibuster has transformed dramatically, granting the minority a profound influence over the Senate’s agenda. Today, more and more Senate bills require 60 votes in order to end debate, thus stymieing the majority party’s policy initiatives and slowing down presidential agendas [2]. The filibuster has been used by the minority to successfully block legislation on topics ranging from gun control, to reproductive rights, to the Southern border wall [5].

During the Obama presidency in 2013, Democratic Senate Minority Leader Harry Reid established a new precedent with regard to the filibuster. Using a parliamentary action called the “nuclear option,” Reid eliminated the filibuster with respect to presidential lower-court judicial nominations [5]. Then, in 2017, Senate Majority Mitch McConnell followed suit, extending the nuclear option to remove the 60 vote requirement for Supreme Court judges. Overall, the new precedent has allowed the confirmation of 216 federal judicial nominations under President Trump [5].

Should the Filibuster Be Eliminated?
Whether or not the filibuster should be eliminated from Senate procedure remains a controversy among both political parties. While some perceive the filibuster as a threat to passing progressive legislation, others—especially in light of the effects of the nuclear option—regard the practice as a check on the power of the majority.

Leading up to the 2020 election, the filibuster has become a prevalent topic as the chances of a Democratic Senate become increasingly possible. Prominent Democratic politicians, such as Senator Elizabeth Warren, have voiced support for eliminating the filibuster. "When Democrats have the White House again, if Mitch McConnell continues to put small-minded partisanship ahead of solving the massive problems facing our country, then we should get rid of the filibuster,” stated Warren in 2019 [6]. Even if Democrats take back the White House and Democrats gain a majority in the Senate, a unified Democratic government’s efforts towards immigration, climate change, racial equity, and electoral reform would be futile if blocked by a Republican minority [7].

Former President Barack Obama also emphasized support for eliminating the filibuster during his eulogy for civil rights leader John Lewis last July. Obama referred to the filibuster as a “Jim Crow relic” that has prevented the passage of major civil rights legislation [8]. On the other hand, politicians such as presidential nominee Joe Biden have previously voiced concerns over eliminating the filibuster. “It is the ultimate act of unfairness to alter the unique responsibility of the Senate…at its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation,” stated Biden back in 2005 [5].

Republican Senate Majority Leader Mitch McConnell also seemingly warned Democrats that eliminating the filibuster would simply result in a one-party system that is only expedient when in the majority party: “The important thing for our Democratic friends to remember is that you may not be in total control in the future” [8].

Ultimately, however, a Hill-HarrisX poll conducted last August shows that only 15% of Democratic voters and 12% of Republican voters support complete elimination of the filibuster. As a whole, registered voters largely agree that the filibuster should remain as is, although 31% stated they believe in increased limits on exercising the filibuster [9].

Furthermore, in order to eliminate the filibuster, Democrats would need to formally change the language of Senate Rule 22, the measure requiring 60 votes for cloture. However, ending debate on a resolution to alter Senate rules demands the support of two-thirds of the senators present and voting. Thus, even if Democrats win the Senate there is a slim chance they will achieve the 67 votes necessary to eradicate the filibuster [4].

The Promise of Reform
Complete elimination of the filibuster by Democrats would leave progressive policies vulnerable to repeal once Republicans reclaim the majority [4]. Thus, reforming the filibuster also remains a promising possibility. 

The most obvious means of reforming the filibuster is lowering the current threshold of 60 votes required for cloture to a number less than 60 that still exceeds a simple majority. Some options include setting the threshold equal to the total number of present and voting members of the majority party. In addition to increasing the majority’s power, this system would still necessitate the cooperation of moderate and independent members. A threshold of 55 votes also appears statistically favorable by similarly lessening the minority’s influence while still requiring a bipartisan vote [10].

Other reforms such as the “mini-nuke” propose outlawing the filibuster only on certain measures in the same way Reid and McConnell utilized the nuclear option to eliminate the filibuster from judicial nominations [2]. Ideas have also circulated regarding eliminating “holds,” a parliamentary procedure in which Senate leaders prevent a bill from reaching the floor simply because a senator announced his intention to oppose it [10]. Disallowing dual-tracking, which allows the Senate to attend to other business in the midst of a filibuster, would also require senators to once again physically hold the floor during a filibuster [10]. Finally, establishing stricter time limits—such as lowering the 30 hours of consideration preceding the cloture vote to only eight hours—would allow the majority more leverage [10].
Overall, reform provides a promising approach to a bipartisan solution. Ultimately, however, whether or not the filibuster will endure as a force in the Senate depends on the outcome of the 2020 election.

References:
1. Toobin, Jeffrey. “It Really is Time to Get Rid of the Filibuster.” The New Yorker. August 6, 2020. https://www.newyorker.com/news/daily-comment/it-really-is-time-to-get-rid-of- the-filibuster.
2. Reynolds, Molly E. “What is the Senate Filibuster, and What Would it Take to Eliminate it?” Brookings Institution. September 9, 2020. https://www.brookings.edu/ policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/.
3. Binder, Sarah A. “The History of the Filibuster.” Brookings Institution. April 22, 2020. https://www.brookings.edu/testimonies/the-history-of-the-filibuster/.
4. Segers, Grace. “Filibuster or Bust: How Senate Democrats Could Get Rid of the Filibuster.” CBS News. August 12, 2020. https://www.cbsnews.com/news/filibuster-or- bust-how-the-senate-could-get-rid-of-the-filibuster/.
5. Levin, Carl and Arenberg, Richard A. “Don’t Fall for Filibuster Abolition. It’s a Trap.” The Washington Post. September 23, 2020. https://www.washingtonpost.com/opinions/ 2020/09/23/dont-fall- filibuster-abolition-its-trap/.
6. “Should Democrats eliminate the Senate filibuster the next time they control the chamber?” The Washington Post. https://www.washingtonpost.com/graphics/politics/ policy-2020/voting-changes/eliminate-senate-filibuster/.
7. Brownstein, Ronald. “The End of the Filibuster—No, Really.” The Atlantic. July 20, 2020. https://www.theatlantic.com/politics/archive/2020/07/why-senate-filibuster- could-be-gone-2021/614278/.
8. Hulse, Carl. “Obama’s Call to Abolish Filibuster Puts Further Spotlight on the Tactic.” The New York Times. July 30, 2020. https://www.nytimes.com/2020/07/30/us/obama- filibuster-senate-democrats.html.
9. Schulte, Gabriela. “Poll: 15 Percent of Democratic Voters Want to Eliminate the Filibuster.” The Hill. August 11, 2020. https://thehill.com/hilltv/what-americas-thinking/ 511576-poll-15-percent-of-democratic-voters-want-to-eliminate-the.
10. Lang, Tim and Strand, Mark. “The U.S. Filibuster: Options for Reform.” September 9, 2017. https://www.congressionalinstitute.org/2017/09/25/the-u-s-senate-filibuster- options-for-reform/#miscellaneous_reforms.

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