By Isabella Sorgi
The filibuster has become a controversial political subject in the past couple of years. This powerful rule requires that in order for a bill to be brought to the floor for a vote, there must be 60 “yes” votes in favor of ending debate. This, in effect, allows the minority party, so long as it holds 41 seats, to block the majority party’s efforts to enact new laws. The question now being asked by Democrats is whether they should take steps to eliminate this 200-year-old rule. How did this rule come about, anyways? Despite frequent political conversations revolving around it, many Americans do not completely understand it.
The filibuster was not part of the Founding Fathers’ vision. In fact, it did not come into existence until 1806 when the Senate adopted new procedural rules. The decision was not a strategic or political one, but came into existence when the Senate repealed a rule requiring 50 “yes” votes to bring debate to an end. This old rule was not replaced, thereby allowing senators to block a floor vote through ongoing debate. On March 1917, a Republican senator successfully launched a filibuster only 26 hours prior to the Senate’s recess because he feared certain proposed legislation would lead to war. President Woodrow Wilson, fed up with the frequency and inconvenience of such filibustering, demanded that the Senate adopt a new rule to prevent “[a] little group of willful men, representing no opinion but their own, from hijacking future legislation.” Soon after, the Senate adopted the cloture rule, which mandated that a two-thirds (eventually three-fifths) vote was sufficient to end debate and proceed to a floor vote.
The filibuster is often referred to as a “Jim Crow relic” given it was most commonly used to prevent the passage of civil rights legislation. Southern segregationists, a minority faction in the Senate during the 1960s, used the filibuster as a means of maintaining racial inequality. For example, they successfully filibustered several pieces of legislation that would have forbidden poll taxes and made lynching a federal crime. Furthermore, sweeping pieces of civil rights legislation, including the Civil Rights Act of 1957 and the monumental Civil Rights Act of 1964, faced serious opposition and were almost killed by the filibuster. Senator Strom Thurmond’s filibuster of the Civil Rights Act of 1957 lasted over 24 hours and holds the record for the longest filibuster in history.
Today, to pass in the Senate, most legislation requires 51 votes (a simple majority.) However, to end debate over the legislation, the cloture rule maintains that three-fifths of the members present must vote to cut off debate. If there are not enough votes to invoke cloture, the bill will never be voted upon. The filibuster rule has evolved so that today the minority party can delay or block a bill by simply signaling their intent to filibuster, thereby eliminating the “talking filibuster.” This makes it much more difficult to pass bills and explains why having a simple majority in the Senate may not be enough to make progress on legislation.
With majority control, many are now wondering if the Democrats will eliminate the filibuster. Between them both parties have already amended the filibuster rule so that it does not apply to confirmation of federal judges. Moreover, generally speaking, the majority party in the Senate will have one chance a year to pass legislation with a simple majority vote through a reconciliation bill. While such reconciliation bills are limited to the budget process, they only require 50 “yes” votes to end debate and to pass. However, given their allowed scope, such bills are limited in their ability to bring about far-reaching change.
While defenders of the filibuster argue that it protects the rights of the minority party and encourages consensus, opponents complain that it undermines majority rule and creates gridlock. One way to eliminate the filibuster would be to formally change the text of the cloture rule (Senate Rule 22). However, this would require a supermajority to agree to end debate. Another option, often referred to as the “nuclear” option, would be to use the parliamentary procedure that allows a standing rule to be overridden by a 50 percent majority. This vote to override would set a new Senate precedent that would control over the standing three-fifths cloture rule. Still, all 50 Democratic senators (and Vice President Harris) would need to agree the filibuster should be eliminated or altered. This would be difficult, however, given the stated positions of Senators Manchin and Sinema.
The filibuster is one of the most controversial traditions in American politics. Amending, abolishing, or maintaining the filibuster in its current state will have broad policy implications. We will have to wait and see if it is a tradition that will continue.