You’re going to start to hear a lot more about Democrats’ efforts to end the filibuster in the US Senate. If successful, it’ll be an important move supported by good-government advocates as well as political progressives who want to defrost the levers of government and make them work in a big way instead of in increments.
The short version of the story is that Democrats want to reinterpret Senate rules so they can use just 50 votes to pass things like their voting rights bill or the massive infrastructure package that President Joe Biden is expected to introduce.
More than a hundred years in the making, the effort will be fraught with histrionic warnings about the tyranny of majority rule.
The US Chamber of Commerce kicked things off Friday, with Executive Vice President Neil Bradley telling CNN Business reporter Matt Egan that ending the filibuster “would fundamentally destroy the stability of the American legal and policy apparatus.”
Why? It would amplify the yo-yo nature of today’s Washington, with each successive Congress undoing whatever the previous one had done, Bradley claimed.
The Senate was designed to work on supermajority votes in order to generate compromise. Instead the system has created paralysis. This is a world where three-fifths is the only meaningful majority, “debate” is code for delay and party loyalty has overtaken the greater good.
To understand what’s going on, you’ll have to learn the special, pre-modern language of “filibuster” and “cloture,” baffling math and maddening rules like “Rule XXII” that govern Senate procedure and confound common sense.
Here’s what you need to know:
What is the filibuster?
According to the Senate website – which has its own glossary – a filibuster is this: “Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”
These days, it’s shorthand for anytime senators demand a supermajority to cut off debate and move to an actual vote on just about anything.
What would ending the filibuster do?
When people talk about ending the filibuster, what they really mean is reinterpreting Senate rules around cloture so that legislation could pass by a simple majority instead of being held up by a minority.
Do Democrats have enough support to end the filibuster?
Not yet. While top Democrats like Sen. Dick Durbin of Illinois are behind the effort and progressives like Sen. Elizabeth Warren of Massachusetts have been pushing it for years, moderates like Sen. Joe Manchin of West Virginia are not. Because Democrats have only 50 votes right now, every one of them needs to be on board to change the Senate rules – and they could be changed back in the future.
What about Biden?
He was a senator for decades and respects the institution, but he’s now a president trying to get things done. Biden told ABC’s George Stephanopoulos he’d like to revert to a “talking filibuster.”
“I don’t think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days,” he told Stephanopoulos. “You had to stand up and command the floor, you had to keep talking.”
“So you’re for that reform? You’re for bringing back the talking filibuster?” Stephanopulos asked.
“I am. That’s what it was supposed to be,” Biden said, a la “Mr. Smith Goes to Washington.”
What would Democrats do first if they ended the filibuster?
The first order of business would be their voting rights bill, S.1, which would counteract curbs Republicans are placing on mail-in and absentee voting, streamline national voter registration and end the partisan drawing of congressional lines.
Stacey Abrams has argued Democrats could get around the filibuster for this one bill. But most people agree that once a party ends the filibuster for one bill, it’ll be hooked and do it again and again.
What is cloture?
It’s a funny spelling for the idea of closure, or limiting debate on something. If all senators don’t agree to move to a vote on something – a bill, a nomination, almost anything – supporters must “invoke cloture.”
Here’s the Senate glossary definition: “The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (that’s Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.”
Why are the filibuster and cloture built into Senate rules?
Unlimited debate by filibuster appears to be something of an accident, according to some experts. Brookings fellow Molly Reynolds wrote that a provision allowing for a simple majority to force votes like the one utilized in the House of Representatives was removed on the advice of then-Vice President Aaron Burr to simplify the rules, not to create a supermajority test for all legislation.
Filibusters came into common use around the Civil War, causing headaches and slowing things down.
Cloture was adopted around World War I as a check on filibusters, when a few senators held up efforts by President Woodrow Wilson during the war in Europe.
It’s been 60 votes or three-fifths ever since?
No. Originally it took a much harder to achieve two-thirds of senators – 67 in today’s Senate – to invoke cloture and limit debate. That’s why it took so long for senators to pass civil rights legislation. They further revised the cloture rule in the late 1970s and mid-1980s. Seriously. Ending the filibuster is 100 years in the making.
What’s the filibuster been used for?
The most famous filibuster is the most distasteful: Southern Democrats held up civil rights legislation until 1964, when support was literally overwhelming.
Both sides have engaged in filibusters. Why was President George W. Bush unable to enact an immigration overhaul? Filibuster. Why was President Barack Obama unable to enact climate change legislation? Filibuster. Why can’t Democrats today pass a voting rights bill? Filibuster.
How often has cloture been used to get around filibusters?
It used to be quite rare. There were fewer than 10 cloture motions filed in any year between the adoption of the practice in 1917 and 1969. There were fewer than 100 filed in any year between 1970 and 2006.
But now cloture is required for almost everything. There were more than 300 cloture filings in the Congress of 2019 and 2020. That led to 298 cloture votes and cloture being invoked 270 times. Many of those were for judicial nominees as Republicans packed the courts with Trump appointees over Democratic objections.
So how many votes are cloture votes today?
Senators voted 720 times in 2019 and 2020, according to Senate records. If 298 of those votes were cloture votes, that means about 41% of all the votes senators took in the last Congress were cloture votes.
How would this process be changed?
There are two ways:
- Change Senate rules, and particularly Rule XXII. But this requires two-thirds of senators – again, 67 in today’s Senate. That’s just plain not going to happen.
- Change Senate precedent. This is a sly way around the filibuster and cloture. Basically, a senator raises an objection to a cloture rule, the presiding officer rules it out of order, and then a simple majority of senators votes to overturn his or her ruling.
This second way of ending filibusters is known as the “nuclear option” because the idea is it would blow up the Senate system.
Have senators ever gone nuclear before?
Yes. Democrats did it to make it easier to confirm President Barack Obama’s nominees to government service. Republicans did it to confirm President Donald Trump’s Supreme Court nominees. Filibuster boosters should wish a pox on both their houses. Democrats went nuclear first, but, objectively, it came after years of GOP obstruction of everything Obama tried to do.
Did changing precedent solve the problem?
Yes and no. It solved the problem of needing 60 votes to confirm nominees. It also led to even more cloture filings, creating a new problem in the Senate calendar. Senate Majority Leader Chuck Schumer has filed cloture on even noncontroversial Biden nominees.
How much time does the cloture process take?
The cloture process is meant to limit debate, but it takes days to accomplish. Under Senate rules, the signatures of 16 senators are required to file cloture, then there is an intervening day and 30 hours of debate before senators can vote on cloture. It can theoretically take 15 days to get to a vote if all cloture time is exhausted, according to the Congressional Research Service. If Democrats do reinterpret the cloture rules, it could mean even more cloture votes.
So what’s going to happen?
Senators know how to end the filibuster and partisan obstruction is getting worse, not better, so it’s just a matter of time before 50 senators agree to end this practice. Evidence: They’ve ended it for nominations. Will Democrats end the filibuster to pass legislation this year? That’s not yet known.