Just this week, Senate Majority Leader Mitch McConnell stated that eliminating the filibuster would “permanently disfigure” the Senate, making more public a procedural policy fight that has been simmering in the beltway for a long time. McConnell has wielded the filibuster many times in his tenure to prevent the passage of legislation or the confirmation of government appointments—as have members of both parties before him—and consistently touts its necessity. Yet, for a political tool as powerful as it is, many Americans don’t understand what the filibuster really is and why we are debating its elimination.
When people think of the filibuster, if they think of it at all, they often imagine Jimmy Stewart’s 25 hour non-stop speech to fight corruption in Mr. Smith Goes to Washington.
Unfortunately, that scene, in all its idealism and nobility, doesn’t really cover the actual way the filibuster is used in modern day politics.
The filibuster allows a minority of lawmakers to delay or stop a confirmation or a bill by preventing the Senate from having enough consensus to call for a vote—and this can happen even if a bill or policy has the support of 51% of the senators. The minority can refuse to concede until at least 60 senators overrule them. This means that almost all bills in the Senate could require nearly a supermajority of support, instead of a simple majority.
In theory, that sounds great. More support means more compromise, right? But it also means that with the filibuster, 41 Senators get to make a decision for the country without themselves having to compromise at all — 41 senators in many situations have more power than 59.
Many people feel this doesn’t make sense.
TO UNDERSTAND THE FILIBUSTER, UNDERSTAND ITS ORIGIN
Though it was used a few times in the 1800s, the filibuster didn’t really become a formal political tool until 1917. According to Matthew Yglesias at Vox:
“Things changed in 1917. Near the height of World War I, Germany announced a policy that its submarines would enforce a blockade of Britain-bound shipping by sinking any merchant vessels heading for the British Isles. In response, Woodrow Wilson and most members of Congress supported legislation that would arm American merchant ships. Sen. George Norris of Nebraska along with 11 colleagues filibustered the bill, and in response, Wilson urged the Senate to adopt a rule allowing for a supermajority of 67 senators to kill a filibuster. This allowed Wilson’s wartime legislation to pass, but somewhat ironically, limiting filibusters served to somewhat normalize them, and it became routine for a Southern-based minority of senators to filibuster civil rights legislation.”
Since then, the filibuster has been used hundreds of times, and the rules have been tweaked in the process. Today, the Senate requires 60 votes to move a topic to a vote through a filibuster, and without those 60 votes, the Senate is still allowed to move on to new topics without closing old ones. “This turned filibustering into a less spectacular event than it had previously been — to filibuster a bill no longer meant holding up all bills — which in practice has served over time to encourage senators to do it more and more frequently,” says Yglesias.
And the filibuster has definitely been used more frequently in the past 15 years particularly.
The modern filibuster effectively allows 41 Senators to quash legislation in the Senate in the face of majority support. This makes passing ambitious policies that often lack overwhelming bipartisan support from getting passed. Some say this is a good thing. But more recently, we have seen this to mean that very little legislation actually gets passed through the Senate, for example, continued Covid-19 pandemic relief that the country sorely needs right now. Everyone agrees something should get passed, but nothing has thus far been able to make it to cloture (a procedure for ending a debate and taking a vote) in the Senate.
SO WE NEED TO ELIMINATE THE FILIBUSTER, RIGHT?
Constitutional experts and historians have long noted that supermajority cloture has no basis in a Constitutional understanding of the Senate. Needing 60 senators to agree is not what the Framers had in mind. So, with no Constitutional protection, and the filibuster’s obvious use as an impediment to legislation for both parties, shouldn’t we change it, or eliminate it, completely?
Some politicians say yes. When she ran in the Democratic primary for the 2020 Presidential nomination, Sen. Elizabeth Warren (D-MA) stated emphatically that the Senate should end the filibuster and pass legislation by majority rule: “When Democrats next have power, we should be bold and clear: We’re done with two sets of rules — one for the Republicans and one for the Democrats. And that means when Democrats have the White House again, if Mitch McConnell tries to do what he did to President Obama and puts small-minded partisanship ahead of solving the massive problems facing this country, then we should get rid of the filibuster.”
But not everyone agrees, as Sen. McConnell made clear this week. Not only do the majority of Republican senators disagree with eliminating the filibuster, a small number of Democrats have come out against it in the past, including presidential candidate Joe Biden, though he has shown a serious openness to elimination discussions recently.
The truth is, both parties have benefit from the filibuster at some point, and both parties have been hurt by it. The arguments that we hear for its use and its elimination are extremely situational, greatly depending on who is in power. The party in the minority tends to love the filibuster, even at the expense of passing legislation for the American people.
So we all need to ask, does this political maneuver, on balance, gives us better or worse government?
It’s hard to know for certain. It likely all comes down to how slow and deliberative (in both good and bad ways) we want our government to be. The filibuster effectively slows down legislative change. That can be a good or a bad. But it most definitely gives a minority of Senators power over the majority, which does seem problematic in a democratic republic.
In the next few years and Presidential administrations, our politicians may have to ask themselves if that bad outweighs the good enough to merit a significant change in modern government.