We are on the verge of a procedural fight to determine whether the United States will be ruled by an anti-democratic minority or take a hard turn away from the authoritarianism of the Trump years. Along with the fate of democracy, the upcoming battle over the Senate filibuster will decide the future of the Biden presidency, the political viability of the Republican and Democratic parties, and whether millions of people, especially people of color, will find it easier to vote or be effectively disenfranchised. This sounds grandiose and hyperbolic, but I can’t think of another example in recent memory when so much was riding on an arcane procedural choice. Like the Supreme Court decisions in Bush v. Gore and Citizens United, and Mitch McConnell’s maneuvering that landed Neil Gorsuch rather than Merrick Garland on the Court, if Democrats modify the filibuster it will be a crossroads moment in our history with ramifications as if not more profound than these other inflection points.
Because most people don’t follow Senate procedure — and who can blame them? — it can be challenging to see the connection between the filibuster and far-reaching political and policy outcomes. There are a lot of moving procedural parts to filibuster reform, and the filibuster is steeped in history that is both relevant to the present moment and widely misunderstood. Because the filibuster has been in the news, I’ve been asked quite a bit recently to explain what’s happening and what it means, so I thought it might be helpful to replicate a version of those conversations here. Think of what follows as a sort of Filibuster 101 — an attempt to cut through the byzantine ways of the Senate and clarify why the filibuster is inextricably linked to voting rights in an effort to illuminate what stands to be the most important political battle of our generation. If you’re interested, please read on, but — warning — this one is long.
What is the filibuster? It’s a procedure that allows a minority to deny passage of legislation they don’t like by preventing the majority from ending debate. Endless debate means you never take a vote, which means the measure never becomes law. In the Senate, it takes a three-fifths supermajority (60 of 100 senators) to cut off debate by invoking a procedure called cloture. In an era when a win for one side is viewed as a loss for the other, the sixty vote threshold is always out of reach, so the filibuster can make governing impossible.
Why do Republicans want to preserve the filibuster? Because they want to make governing impossible. This was not always the case but it has become increasingly so over the past several decades as the “less government” mantra of the early Reagan era morphed into the Newt Gingrich shut-down-the-government-if-we-can’t-get-what-we-want mentality of the 1990s, then into a kind of nihilism about government that’s best expressed by Rep. Marjorie Taylor Greene repeatedly filing motions to adjourn the House because she believes it’s what her constituents want (and because she has nothing better to do since she’s been stripped of her committee assignments for using her social media feed to endorse Nancy Pelosi’s execution).
Is the filibuster a constitutional mechanism? No. It’s a procedural creation of the Senate.
Has the filibuster always been part of Senate procedure? No. The early Senate operated on a majority basis just like the House.
Have there been changes to the filibuster over time? Yes – several. Today’s filibuster is painless for the minority to use — just muster forty-one votes to deny cloture and move on to other things. But there was a time when senators had to hold the floor and speak to maintain a filibuster. Cloture once required a two-thirds vote of those present, then two-thirds of the entire chamber, then three-fifths, and exceptions to the filibuster have been carved out for votes on rules changes, spending and revenue bills, executive branch and federal court nominations, and Supreme Court nominations.
So then why do some senators pretend that the filibuster was brought down from Mt. Sinai? Republicans who claim the filibuster is sacred do so because they don’t want to lose the power to block the majority, and their position on protecting minority rights sounds noble to people who don’t pay much attention to Senate procedure, which is to say almost everyone.
But there are Democrats who also say the filibuster is sacrosanct. Why? Some Democrats see themselves as institutionalists with memories that only go back as far as their personal service as senators. Some fear that eliminating the filibuster will come back to haunt them the next time they’re in the minority, although most have now been disabused of this fear because of how they were treated the last time they were in the minority.
Historically, how has the filibuster been used? For most of American history the filibuster wasn’t used at all. When it was, it was used sparingly. Only in recent years has the filibuster become a go-to method of obstruction, made possible by rules changes allowing the Senate to continue to conduct business while legislation is silently denied cloture. It doesn’t extract a political price for the minority to withhold support for ending debate when no one is going to notice and the Senate can carry on with other things, so the filibuster became a blunt instrument for the minority to bludgeon the majority’s agenda.
But what about those rare occasions in years gone by when senators would hold the floor for hours to prevent a vote on legislation? Truthfully, this played better in the movies. For old film buffs, the filibuster is the tool of last resort used by the everyman Senator Smith to expose a corrupt political system in the Frank Capra film Mr. Smith Goes to Washington. The reality is far less romantic. Contrary to how the filibuster was depicted by Jimmy Stewart, it was most prominently used by segregationists opposed to civil rights legislation. Prior to the Civil War, it was used by southern senators to defend the interests of slavery.
Do Democrats have the votes to eliminate the filibuster? Probably not. It would take every member of the Democratic caucus to get it done, and at least one member — Joe Manchin of West Virginia — has said unequivocally he will not provide the fiftieth vote to end the filibuster.
Then what can they do? They can change the rules — again — to re-establish a version of the talking filibuster, where the minority needs to hold the floor to continue debate and prevent legislation from coming to a vote.
Do they have the votes? Maybe. Democratic leaders including President Biden, Senate Majority Leader Chuck Schumer, and Senate Majority Whip Dick Durbin have been telegraphing for the past week that a change of this nature is on the horizon. Biden in particular has shifted his rhetoric from saying he opposed eliminating the filibuster to expressing his support for reform. It would be unlikely to see coordinated messaging like this from Democratic leaders if they didn’t think they had the votes to change the rules.
How would a “talking filibuster” make governing possible? Re-establishing the talking filibuster would force the minority to assume the burden of sustaining their opposition to legislation, rather than requiring supporters to assemble a supermajority of sixty senators to advance it. In practice, it would be impossible for the minority to stall forever or broadly filibuster everything. There are numerous ways to write the rules but the general idea is that as soon as the number of filibustering senators present in the chamber drops below forty, it would be possible to end debate and proceed to a majority vote on legislation. And if the rules require senators to speak directly to the legislation they’re filibustering, it would have the added wrinkle of generating transparency — and campaign-ready footage to use against senators who take the floor to oppose popular issues.
What issue is likely to force a decision on the filibuster? Election reform. The House has passed legislation it calls the “For the People” Act, designated H.R. 1, which is a laundry list of good-government measures to expand and secure voting rights, limit the influence of money in politics, and end partisan gerrymandering. It is partnered with the John Lewis Voting Rights Act, which would restore portions of the Voting Rights Act of 1965 that were struck down by the Supreme Court, requiring federal clearance before states with a history of voter suppression can purge voters from their rolls, shorten early voting periods, impose voter ID laws, and the like.
Why election reform? The fate of the For the People Act and the John Lewis Voting Rights Act will determine the slope of the political playing field for the next decade at a moment when the country is teetering between replenishing democratic involvement and descending into autocracy.
That sounds important. Can you say more? After losing the White House and Congress in the highest turnout election in a century, Republicans have introduced over 250 bills in 43 states designed to restrict voting rights, primarily for voters of color. These efforts would be slowed appreciably or stopped in their tracks if the House bills find their way to Joe Biden’s desk. Attempts by autocratic Trumpian insurrectionists to regain power would become exponentially more difficult, and the Republican Party as we know it would risk being put out of business as a national entity. However, in the absence of a version of these bills becoming law, partisan redistricting following the 2020 census stands to give Republicans a path to maneuver back to power in the House by intensifying existing gerrymanders, and aggressive voter suppression methods would give Republicans a chance to regain control of the Senate and presidency by amplifying the votes of a receding white electorate.
How can Republicans permit these measures to pass the Senate if they stand to put the party out of business? They can’t.
Which means Republicans will filibuster them? Absolutely.
Which means the only way for Democrats to pass them would be by changing the filibuster rules? Yes. Election reform is not possible without filibuster reform. And the future of the Democratic Party — which at the moment is the only party fully invested in democracy — depends on election reform. So Democratic leaders see the issue as a matter of political and national survival, something fundamental enough to justify changing Senate rules to make it happen.
What’s going to happen next? Sometime soon, Schumer will bring H.R. 1 to the Senate floor for debate under the current rules. He will give Republicans the opportunity to block a vote on the bill, which they will do. Schumer will then express his outrage at Republican obstruction of what he will characterize as a common-sense, democracy-affirming measure which registers strong public support. He will declare it unacceptable for a Senate minority to block the will of the American people.
Then what happens? That depends on which rules changes can garner the support of the entire Senate Democratic caucus. It will take all fifty Democrats and Vice President Harris to execute a parliamentary maneuver modifying the filibuster, but if they are unified they can force an immediate change in the filibuster rules. Democratic leaders will not go down this path unless they are certain they have the votes. For many years those votes have been lacking. Filibuster reform was an action item for progressive activists that met with broad resistance from elected Democrats and attracted little interest from the general public. But the January insurrection and total Republican opposition to Covid relief appears to have galvanized Senate Democrats, who are coming around to the view that Republicans are determined to reclaim power at the expense of Democratic constituencies. Moral, political and policy objectives are aligning at a moment of crisis for democracy. This makes voting rights an existential matter and raises the ironic possibility that the urgency to secure them will finally motivate Democrats to weaken the obstructive procedure whose legacy has been to deny them.