A growing number of Democrats see the filibuster as a barrier to accomplishing their legislative goals.
Even President Joe Biden, who has resisted calls to end the filibuster, suggested last week he would support ending it if Republicans blocked his agenda. This comes as Democrats try to pass sweeping voting rights legislation, and as key issues like climate change and immigration come to a head.
Meanwhile, Senate Minority Leader Mitch McConnell says ending the filibuster would bring a “nuclear winter” on the Senate floor.
The filibuster is an action that prolongs debate and delays or prevents a vote on a measure, such as a bill. Prior to 1917, Senate rules didn’t provide a way to end a debate and force a vote on a measure. That year, the Senate adopted a rule a two-thirds majority to end a filibuster via a procedure known as cloture.
“Before the 1960s, the filibuster was a game of exhaustion,” said Gisela Sin, associate professor of political science at the University of Illinois and has a background in legislative rules and procedures.
Here’s how it worked: The minority would prevent a vote on a measure by continuously speaking – without taking any breaks or moving about the Senate chamber. Meanwhile, the majority party had to make sure it had enough senators to form a quorum. If throughout the filibuster, senators and the majority lost the quorum, the session would stop and senators would adjourn. This is a process that could go on for hours, and was called the “talking filibuster.”
“Whoever could last longer won the game,” Sin said. “The filibuster was really onerous on both sides of the aisle.”
Now, senators can send a letter of intent to the Senate leader to signal the intention to filibuster. The cloture rule, the only rule by which the Senate can impose a time limit on arguments, requires 60 votes. It used to require two-thirds of the vote until 1975.
“It’s still a super majority to be able to have a vote on a bill,” Sin said. “That super majority is not something signed by the Founding Fathers. It’s not something in the Constitution. It’s something that senators adopted throughout time. It’s not in the design.”
Sin said the filibuster promotes bipartisanship in theory, but in recent decades it has prevented the Senate from moving legislation forward.
“The intensified political polarization that we have witnessed in the last 20 years, which is reflected in a skyrocketing use of the filibuster, means that the minority class has a real incentive to stick together with no negative consequences,” Sin said. “Senators can avoid a vote by simply sending, now a letter, to the party leader indicating they’re going to filibuster. That paralysis is very damaging when we are in a situation like an economic crisis or a pandemic that needs urgent legislation.”
However, the filibuster gives more power to moderate senators in the middle, she said.
“It allows one party to give concessions to the other party in times in which you could move this middle of the row senator,” she said. “That’s almost impossible now.”
The filibuster can be changed in a few different ways, Sin said. The Senate could change the Senate rule 22, which determines how many votes are required to break a filibuster. However, changing the rule would require 60 votes to pass, which is nearly impossible, according to Sin.
Instead, it’s more likely that the filibuster could be changed by creating new senate precedent, which would only take a 51-majority vote. This is the “nuclear option,” Sin said. That’s how Democrats changed the filibuster for judicial nominees in 2013, and how Republicans changed the filibuster for Supreme Court nominees in 2017, according to Sin.
“What basically you do is that you create a precedent by which now we don’t need 60 votes to talk about these kinds of issues,” Sin said. “They have chipped away at the filibuster in the situations that they want that both parties or at least one party really, really wants. If there’s a bill they want to pass, they can get around.”
For instance, Sin said, Democrats could change senate precedent for legislation on voting rights in order to pass HR 1.
“Democrats are walking on a very fine line because it will only take one senator to change parties for them to lose the majority,” Sin said.
Sin doesn’t expect that ending the filibuster would mean extreme legislation would be automatically passed because bills would still need to get the majority of the vote, requiring support from moderate senators.
“It will always be that you have a party that goes from the moderate up to the most conservative or the moderate to the very liberal ones, from Joe Manchin to Bernie Sanders,” Sin said.