Filibuster: Explanation of Possible Alternatives to Abolition amid a Divided Senate

By Nicholas Williams 

Nicholas Williams is a sophomore in the College of Arts & Sciences from Los Angeles, California who is majoring in History.

    Although unknown to many Americans, the filibuster is an important aspect of the United States Senate and the entire legislative process in the United States. In its current form, the filibuster is a Senate procedural tool by which 41 senators can indefinitely delay a vote on most legislation [1]. In practice, the filibuster requires that most legislation has the support of at least 60 senators to pass. Recently, there have been calls by many Democrats in the Senate to abolish the filibuster [2]. However, to abolish or not to abolish is not a simple binary; there are many ways that the filibuster can remain intact but still be reformed and possibly weakened.

     Initially, the filibuster allowed senators to debate a matter in the Senate floor before it came up for a vote, potentially to an endless degree in order to stall said matter from coming up for a final vote [3]. Many credit the creation of the filibuster to former Vice President Aaron Burr [4]. As president of the Senate in 1805, Burr thought the Senate should get rid of a rule known as the previous question motion that immediately cut off floor debate, which laid the groundwork for the filibuster. The first filibuster in the Senate did not actually occur until 1837, and in 1917, the Senate created a mechanism to end a filibuster, known as cloture. If ⅔ of senators who were present agreed to invoke cloture, then the Senate would soon end and the matter at hand would come for a vote. If not, a senator or senators could theoretically continue speaking until the matter was dropped.
    In 1975, the Senate changed the number of votes required to invoke cloture from ⅔ of present senators to ⅗ of the entire Senate--currently 60 senators. Later, the Senate started placing aside bills that were threatened with a filibuster to prevent Senate business from being stopped during long filibusters. However, with floor debate no longer required to filibuster, only one senator saying that he planned to filibuster could stall a bill that at least 41 senators opposed. It then became much easier to stall a Senate vote, and in recent decades, especially the last decade, the number of filibusters has increased dramatically.
    Amid this backdrop, many Democrats have been calling for the abolition of the filibuster. Many Democrats are worried that much of President Joe Biden’s legislative agenda could not pass if the filibuster remains intact, including some legislation that could possibly gain majority support in the Senate. Sen. Tina Smith (D-MN), for example, called the filibuster an “‘enemy of progress’” in a recent social media statement announcing her support for abolishing the filibuster [5]. 
    Republicans argue that eliminating the filibuster would make the Senate a less deliberative body and would lead to less bipartisan compromise. Minority Leader Mitch McConnell (R-KY) argued that eliminating the filibuster would cause the Senate to enter a “‘new era of fast-track policy-making’” [6]. He further threatened that Republicans would not allow for unanimous consent on many Senate procedures, which would lead to an increase in the number of required Senate roll call votes. This could make the Senate move at a slower pace, making it more time-consuming for the majority party to move forward with policy initiatives or nominations for the president.  
Biden himself has recently come out in support of bringing back the “‘talking filibuster’” which, while it was still in effect, required senators to debate on the Senate floor in order to filibuster [7]. Democrats would need 50 Senate votes and the tie-breaking vote of Vice President Kamala Harris to change the rules regarding the filibuster [8]. Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have come out against abolishing the filibuster. Despite this, Manchin himself recently indicated support for bringing back the talking filibuster. This is one of many ways to keep the filibuster in place while potentially curtailing its scope and influence.
    Besides abolishing the filibuster or bringing back the talking filibuster, the filibuster could be narrowed in several ways. One of these ways is to narrow the scope of matters on which a filibuster may be invoked, or reduce the number of senators required to invoke cloture on certain matters. For example, reconciliation bills, or bills that are related solely to matters of taxing, spending, and debt limit legislation, are not subject to a filibuster [9]. 
Senators who are hesitant to completely abolish the filibuster and feel strongly enough about an issue could vote to eliminate the filibuster only for certain matters [10]. 51 senators (or 50 plus the vice president) are required to “reinterpret[]” a Senate rule, which formally keeps an old rule in place (like that 60 senators are required for a filibuster) but changes it in practice (like reducing the threshold for the filibuster to 51 votes and making the threshold 51 votes in practice, even though the official rule that 60 senators are required to invoke cloture would technically still be on the books). 
   A broader reform would be to lower the threshold for breaking a filibuster of any bill more widely, with 55 being a reasonable number according to the Congressional Institute [11]. Given that the Senate is currently divided 50-50, such a reform would most likely not help Democrats pass any major legislation as of right now. However, 55 is of course not the only number that the threshold to break a filibuster could be lowered to; a majority vote could effectively change the number of senators required to invoke cloture to any number which it desired.
   Realistically, the filibuster is not completely going away soon. A variety of reforms to the filibuster could be implemented, but at least 50 Senate Democrats would be needed to enact any of these reforms during Biden’s term. Of course, any filibuster reform that makes it easier for the majority to pass legislation will likely stay in place the next time that Republicans take the Senate majority, making it easier for a future Republican Senate majority to pass closely contested bills. Until then, though, the future of the filibuster could be said to be in reluctant Democrats’ hands.



[1] Cornwell, Susan. “What is the U.S. Senate filibuster and why is everyone talking about it?” Reuters. Accessed March 22, 2021. https://www.reuters.com/article/us-usa-congress-filibuster-explainer/explainer-what-is-the-u-s-senate-filibuster-and-why-is-everyone-talking-about-it-idUSKBN2B22HK.
[2] Thrush, Glenn. “More Democrats join the effort to kill the filibuster as a way of saving Biden’s agenda.” The New York Times. Accessed March 22, 2021. https://www.nytimes.com/2021/03/05/us/filibuster-senate-democrats.html.
[3] “The evolution of the Senate filibuster.” The Washington Post. Accessed March 22, 2021. https://www.washingtonpost.com/politics/the-evolution-of-the-senate-filibuster/2013/11/21/d4b46486-52f4-11e3-a7f0-b790929232e1_story.html.
[4] Bomboy, Scott. “Is Aaron Burr really the father of the filibuster?” National Constitution Center. Accessed March 22, 2021. https://constitutioncenter.org/blog/is-aaron-burr-really-the-father-of-the-filibuster.
[5] Linskey, Annie, Sean Sullivan, and Maria Sacchetti. “Pressure grows on Biden to end the filibuster.” The Washington Post. Accessed March 22, 2021. https://www.washingtonpost.com/politics/biden-kill-the-filibuster/2021/03/05/09c0d774-7857-11eb-8115-9ad5e9c02117_story.html.
[6] Editorial Board. “McConnell’s Filibuster Throwdown.” The Wall Street Journal. Accessed March 22, 2021. https://www.wsj.com/articles/mcconnells-filibuster-throwdown-11615935214.
[7] Siegal, Benjamin. “Biden says he supports reforming Senate filibuster in ABC News exclusive interview.” ABC News. Accessed March 22, 2021. https://abcnews.go.com/Politics/biden-supports-reforming-senate-filibuster-abc-news-exclusive/story?id=76499156.
[8] Everett, Burgess. “Anti-filibuster liberals face a Senate math problem.” Politico. Accessed March 22, 2021. https://www.politico.com/news/2021/03/09/anti-filibuster-liberals-senate-474729.
[9] Kogan, Richard and David Reich. “Introduction to Budget ‘Reconciliation.’” Center on Budget and Policy Priorities. Accessed March 22, 2021. https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation.
[10] Millhiser, Ian. “How Joe Manchin can make the filibuster ‘more painful’ for the GOP without eliminating it.” Vox. Accessed March 22, 2021. https://www.vox.com/22260164/filibuster-senate-fix-reform-joe-manchin-kyrsten-sinema-cloture-mitch-mcconnell.
[11] Strand, Mark and Tim Long. “The U.S. Senate Filibuster: Options for Reform.” Congressional Institute. Accessed March 22, 2021. https://www.congressionalinstitute.org/2017/09/25/the-u-s-senate-filibuster-options-for-reform/#lower_threshold_invoke_cloture.


The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.