The filibuster is a long and undemocratic Senate tradition that needs to end. Using the filibuster, a small minority can block Senate passage of legislation that is supported by a bi-partisan majority.
Historically, filibusters blocked civil rights and voting rights legislation. Filibusters blocked anti-lynching bills in 1922 and 1935. In 1957, Senator Strom Thurmond spoke for 24 hours and 18 minutes in opposition to the 1957 Civil Rights Act. The filibuster against 1964 Civil Rights Act ran on for 60 days, with Southern Senators holding the bill hostage despite majority support. Finally, a bi-partisan coalition mustered enough votes to end the filibuster, and the Civil Rights Act passed by a vote of 73 to 27.
President Obama called the filibuster “a Jim Crow relic.” In 2010, that relic killed the Dream Act. A majority of Senators supported the Dream Act, but they could not get it to a vote. In order to stop the filibuster, they needed 60 votes: they had only 55.
The filibuster was created, probably unintentionally, by a Senate rules change in 1806. Before 1806, the Senate, like the House of Representatives, could vote to cut off debate and move to a vote. That meant majority rule: bills could become law if a majority of the House and Senate voted for them and the President signed them. That, by the way, is what the Constitution sets out as the process for making laws.
Once the rule for limiting debate was repealed in the Senate, debate could go on indefinitely—a filibuster. That meant a small minority could block a bill from becoming law, even if the proposed law had overwhelming majority support.
In 1917, the Senate created cloture, a procedure allowing two-thirds of the Senate to vote to end debate. In 1975, that number was lowered to three-fifths of the Senate or 60 votes. Rules changes in 2013 and 2017allowed a 51-vote majority to cut off debate on confirming Cabinet and judicial nominees and for certain budget bills.
For the rest, a minority, or even one Senator can block a vote by continuing to talk. They don’t even need to make sense: filibustering Senators have read from telephone books or recited Shakespeare, just to hold the floor.
Today, Senators may not even need to actually stand up and speak: the mere threat of a filibuster can suffice. The Congressional Research Service explains:
“These situations are also sometimes described as ‘silent filibusters.’ They may arise, for example, when Senators inform their respective party floor leaders that they prefer the nomination (or other matter) not to receive floor consideration, an action that has become known as placing a ‘hold’ on a matter. Although a ‘hold’ has no formal procedural force under Senate rules, it may represent an implicit threat to filibuster that may discourage the majority leader from bringing the matter to the floor.”
Senator Mitch McConnell led Republicans in using the filibuster to block legislation and confirmation of federal judges during President Barack Obama’s administration. That led to the 2013 rule change allowing a 51-vote majority to limit debate on judicial nominations. The next year, Republicans won a majority in the Senate, which allowed McConnell to continue to block judicial nominations and legislation without needing the filibuster.
What will the filibuster mean for the Biden administration’s legislative agenda?
The COVID relief package might skate past a filibuster as a budget bill. The rules for what is or is not a budget bill can be stretched to a certain degree, and the COVID relief package certainly includes a lot of spending.
Prospects for the U.S Citizenship Act of 2021 or the John Lewis Voting Rights Act seem worse. It’s pretty clear that both measures would pass if Senators are allowed to vote. Even legislation that has bipartisan support cannot overcome a filibuster unless it has a super-majority of 60 votes. It’s not clear that 10 Republican Senators would join Democratic Senators in voting to end a filibuster.
Filibusters magnify the already-strong power of the minority to override the majority. Every state gets two Senators, regardless of population. That means minority rule in the Senate, even without filibusters. As Vox explains:
“Because smaller states tend to be whiter and more conservative than larger states, this malapportionment gives Republicans an enormous advantage … [The] Democratic half of the Senate will represent 41,549,808 more people than the Republican half. …
“American democracy, in other words, is profoundly undemocratic. … A commanding majority of the nation elected a Democrat to the United States Senate, but half of all senators will be Republicans.”
The filibuster reinforces that existing minority rule.
Senate rules can be changed. The filibuster can be abolished. That came close to happening this year, but the Democrats blinked. Two Democratic Senators said they would not vote to end the filibuster. So Republicans will use the filibuster and individual holds to block legislation that has majority support.
It doesn’t need to be that way. The Senate can change its rules.
“In 2013, when Democrats wanted to change the filibuster using a simple majority, McConnell said “what these Democrats have in mind is a fundamental change to the way the Senate operates.” And Reid went ahead and did it anyway.
“This speaks to a crucial fact about the filibuster: though a filibuster can only be broken with 60 votes, the rule that powers the filibuster can be changed, or even eliminated, with 51 votes. The filibuster is a minority protection that exists at the pleasure of the majority.”
For the good of the country, the Senate needs to abolish the filibuster.