Any discussion of the US Senate winds its way inevitably to a discussion of the filibuster. Some call the filibuster a tool of legislative obstruction. Others defend the filibuster as protection for minority views. Many simply consider the filibuster as antiquated. Expect filibusters and arguments over filibusters to dominate the 117th Congress.
The US Constitution doesn’t mention filibusters. In fact, until 1806, a simple majority in the Senate could end debate. That was the year when a simple-majority rule was eliminated in what has been described as an unintended clerical error during an otherwise routine update of Senate rules ordered by Vice President Aaron Burr.
Filibuster owes its origins to a Dutch word meaning “pirate”, according to the Senate’s website, an apparent allusion to stealing a vote. The most enduring image of a filibuster for most Americans is the sight of Jimmy Stewart standing forlornly on the Senate floor in his fight against corruption in Mr. Smith Goes to Washington.
The first Senate filibuster didn’t occur until 1837, before gaining popularity in the 1850s as the nation grappled with abolition and inched toward Civil War. From the 1920s through the 1960s, filibusters were primarily used to block civil rights legislation – from anti-lynching laws to civil rights.
At the urging of President Woodrow Wilson in 1917, the Senate adopted the cloture rule, which allowed a two-thirds majority of the body to end debate. One of the most famous cloture votes occurred in 1964, ending a 60-day filibuster by Dixiecrats to block the Civil Rights Act. Plagued by continuing obstructionist tactics, the Senate amended its cloture rule in 1975 by requiring only a three-fifths majority (60 votes) to halt a filibuster.
It wasn’t until the 1970s that the filibuster grew into more common use by minorities, whether Republican or Democrat. From 1971 through 1989, 50 or fewer cloture notices were filled during a session. Since then, the number has steadily climbed to more than 250 notices in the congressional session starting in 2013. In the just-concluded 116th Congress, there were 200 cloture notices filed in the Senate.
Democrats employed filibuster threats to block drilling in the Arctic National Wildlife Refuge and repeal of the inheritance tax. Republicans turned to filibuster threats to derail legislation that would make it easier for women to claim pay discrimination and end tax benefits for companies that offshored jobs. An analysis indicates Republicans in the Senate have used the filibuster twice as much as Democrats.
In the contemporary Senate, senators don’t have to emulate Jimmy Stewart or Senator Strom Thurmond, who once spoke for more than 24 hours straight on the Senate floor. They simply file what is in effect a cloture-vote notice. The paper threat has become what’s known as the 60-vote rule, which can stymie virtually any controversial bill or appointment subject to Senate confirmation. One critic says legislation without at least 60 votes in favor faces “automatic failure”.
During President Obama’s tenure, then Democratic Senate Majority Leader Harry Reid grew frustrated by chronic delays in Senate confirmation of judicial appointments. He employed what was termed the “nuclear option” by amending Senate rules to allow judicial appointments, except for the US Supreme Court, to move forward on simple majority votes. During President Trump’s term, Republican Majority Leader Mitch McConnell expanded the 60-vote-rule exception to include all federal judges.
The 117th Congress, which has just begun, features a Senate with 50 Democrats and 50 Republicans. Under the Constitution, the Vice President presides as President of the Senate and can cast tie-breaking votes. Because Democrats control the White House and Vice President Kamala Harris will be the Senate’s presiding officer, Democrats will control what measures come or don’t come to the Senate floor for a vote. That’s a somewhat pyrrhic advantage if the 60-vote rule remains in place, because it means 41 senators can block floor votes on any bills, including ones with majority support.
Organization of the Senate was delayed as newly installed Senate Majority Leader Chuck Schumer and now Minority Leader McConnell disagreed over a rule change, or a potential rule change, to end Senate filibusters and eliminate, in effect, the 60-vote requirement to pass legislation. Schumer refused to take elimination of the filibuster off the table and McConnell refused to budge without a guarantee the 60-vote rule would remain in effect. McConnell relented, allowing organization of the Senate to proceed, but that doesn’t mean the filibuster will disappear.
The topic of eliminating the filibuster is a staple for op-eds, editorials and online posts. Liberal-leaning writers favor deep-sixing the filibuster. They point out 21 states with the fewest residents, representing only 11 percent of the total national population, can block any legislation. This is basically the same argument against the Electoral College. Meanwhile, conservative commentators say beware of what you wish for – ending filibusters when Democrats are in control can continue when Republicans resume control. That’s what McConnell did when he erased the 60-vote rule for the confirmation of the last three Supreme Court justices.
Perhaps the greatest casualty from filibuster threats is legislation that is sidetracked or never seriously pursued. A public option was included in the House-passed version of the Affordable Care Act, but the provision was deleted in the Senate because it lacked 60 votes. Campaign reform, climate change and gun violence bills also have been silent victims of the 60-vote threshold. Some of the ambitious campaign promises made by President Biden may have a hard time seeing the light of day because they lack a 60-vote majority.
Cagey lawmakers have developed filibuster workarounds. Most notably, budget bills pass or fail on simple-majority votes through a fast-track process known as budget reconciliation. Initially, budget reconciliation was limited to budget matters. Over time, since rules were relaxed in 1985, non-budget items and huge tax cuts have crept into budget reconciliation packages. Biden and congressional Democrats are exploring slipping another coronavirus financial relief package and perhaps more into a budget reconciliation envelope.
The 1996 Congressional Review Act allows Congress on a simple-majority vote to strike down federal regulations. This provision was used during the Clinton presidency to overturn a worker safety rule. The Trump administration used the Act 16 times to strike down Obama-era rules on drinking water safety, internet privacy, funding for abortion providers and forced arbitration.
Perhaps the greatest casualty from filibuster threats is legislation that is sidetracked or never seriously pursued.
International trade deals are considered on a fast-track basis, as are military base closures. And, all federal judicial appointments are now confirmed by majority vote.
After Biden’s Cabinet nominees are confirmed, his initial burst of executive orders are issued and the second Trump preachment trial concludes, Congress will turn to the new administration’s legislative agenda, forcing Schumer to face the filibuster threat. Biden has predicted he can win bipartisan support for at least some of his legislative priorities, which would avoid or at least forestall any rule changes related to the filibuster. Sooner or later, the Senate will have to address the filibuster and its contemporary use as a political tool of obstruction. Stay tuned.
[The Center for American Progress has posted an insightful report about the history, status and impact of the filibuster on legislative policymaking.]