Hidden beneath a second Presidential impeachment, calls for the censure of a GA Congresswoman, and ongoing Capitol riot aftermath, lies a simmering debate waiting to happen: the removal of the Senate filibuster.
The U.S. Senate filibuster is an institutional rule that has been around long enough that it effectively feels like part of our Nation’s founding. It is not in fact; the filibuster emerged in 1806 and has no Constitutional origins. Some scholars argue that the U.S. Constitution lays out an “implicit premise of majoritarianism” (Chafetz 2011) and, therefore, the filibuster with its ability to increase minority power, is unconstitutional.
The filibuster is the ability to block legislative action through lengthy debate. Until 1806, debate in the Senate could be ended with a simple majority vote. Once the filibuster was in place, a 2/3 majority (later changed in 1975 to 3/5 or 60 votes) was required to end debate on legislation and nominations (this is called cloture) thereby creating a larger role for the minority party in blocking or assisting in decision-making.
By and large, the filibuster has historically been used sparingly. The notable instances of its use have included large displays of long, or even silly, speeches to draw out and ultimately block a vote. Notably, it is the filibuster that was a favorite tool of southern Senators from the 1920s to 1960s as they aimed to block legislation to protect civil rights. This included anti-lynching bills, bills prohibiting poll taxes, and anti-discrimination bills. As such, the filibuster holds a certain historical reputation. Former President Obama has referred to it as a “Jim Crow relic.”
For much of this rule’s history, it has either been used sparingly or, the mere mention of filibuster was enough to block a debate. During the Obama administration, however, it became a heavily relied-upon tool by the Republicans in the Senate to obstruct everything from court nominations to legislative proposals. At the time, Democrats had 55 votes in Senate – just short of the 60 needed to invoke cloture. In 2013, Democratic Senators changed the filibuster rule to allow a simple majority vote (51) on nominees to courts and other federal offices. The rule was not changed for Supreme Court nominations nor for legislation.
Today, there are calls to eliminate the filibuster rule entirely while others warn that the filibuster serves to balance majoritarian power. For instance, former Senator and Vice-Presidential candidate Joe Liberman cautions that the 60-vote filibuster serves as an incentive for both parties to work in a bipartisan fashion toward common goals. Several Democratic Senators meanwhile, criticize the rule as a mechanism for gridlock that prevents the work of the people from getting done.
Not surprisingly, one’s view of the filibuster seems to change depending on their party affiliation and the party that holds a Senate majority at any given time. Those in the minority consistently support the filibuster while those in the majority (particularly when it’s a very slim majority) decry it as obstructionist.
This politically-motivated position may lead to short-sighted thinking. While eliminating the filibuster now would allow Democrats to pass a wide range of progressive bills, they won’t hold the majority forever. In fact, in just two years Senator Warnock (D-GA) will be up for re-election along with 13 other Democratic senators and 20 Republican senators. The balance of power can shift very quickly. The result of course is that we could experience a dramatic pendulum swing when it comes to legislative direction in the country. Much like President Biden essentially reversed all of Donald Trump’s Executive orders in his first weeks, thereby swinging those policies to the other end of the pendulum, without the filibuster Senate Republicans will undoubtedly push through extremely conservative legislation once they regain Senate control in 2, 4, 6…years. The result would be policy fluctuation but not any meaningful progress. Democrats, therefore, should think very carefully before making such a bold procedural move and perhaps consider if rules such as the special Reconciliation rule that was just used for the COVID relief package might be a viable alternative for getting things done. Or, perhaps more radically, Senators from across the aisle might just have to figure out how to work together again.
Dr. Heather Farley is Chair of the Department of Criminal Justice, Public Policy & Management and a professor of Public Management in the School of Business and Public Management at College of Coastal Georgia. She is an associate of the College’s Reg Murphy Center for Economic and Policy Studies.
Reg Murphy Center