What to Know About the Senate Filibuster and the Fight to Reform It
(Bloomberg) -- Once again, the party in control of the U.S. Senate is feeling frustrated by the filibuster. That’s the prerogative enjoyed by the minority party to demand never-ending debate on legislation, thwarting its passage. Filibusters once required senators to stand and speak for hours, but since the 1970s, bills can grind to a halt at the mere threat of one: Almost all bills are doomed unless supported by the three-fifths supermajority required to end a filibuster. Of the more than 1,700 filibusters since 1917, half have taken place since 2000. With Democrats currently in control by only the slightest possible margin, impatient members of that party say the Senate can preserve the filibuster or pass President Joe Biden’s agenda, but not both.
1. How did the filibuster come to be?
The Senate, envisioned by the founders to be a highly deliberative body, was created with no mechanism to end debate on a given topic. Senators quickly realized that long speeches could delay action on legislation they didn’t like. In the 1850s, the practice of talking a bill to death got a name -- filibuster, from the Dutch word for “pirate.” In 1917, senators adopted a rule establishing that debate could be ended upon a so-called cloture vote supported by a two-thirds supermajority. That bar was lowered in 1975 to a three-fifths supermajority, meaning it takes 60 votes in the 100-seat Senate to end debate.
2. What’s happening now?
Senate Democrats are facing increasing pressure to end or modify the filibuster from their more liberal members, the more progressive wing of the House and outside activist groups. Even some moderate Democrats, including Minnesota’s Amy Klobuchar and Tina Smith, signed on to the idea when all 50 Republicans lined up against Biden’s $1.9 trillion pandemic relief and stimulus plan. But to alter the rules, all 50 Democrats in the chamber would have to vote in favor, with Vice President Kamala Harris breaking the resulting tie. At least two centrist Democrats -- Joe Manchin of West Virginia and Kyrsten Sinema of Arizona -- have said they won’t go along. Manchin says the filibuster should be made more “painful” to use by requiring senators who invoke it to speak continuously. Senate Minority Leader Mitch McConnell warned Democrats that if they were to eliminate the filibuster, Republicans would retaliate by making it harder to conduct even routine business in the chamber.
3. What is Biden’s position?
Biden signaled support for Manchin’s proposal in mid-March. “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,” Biden said in an interview with ABC News. “You had to stand up and command the floor, you had to keep talking.” Senate Majority Leader Chuck Schumer is holding open the possibility, saying he’s watching to see how much Republicans obstruct. The matter could come to a head as the Senate turns to Biden-backed proposals expected to face broad GOP opposition, including a big infrastructure package, a rewrite of voting rights law and changes to immigration policies.
4. Are there alternatives to ending it?
Yes. A simple majority of senators could vote at any given time to modify the filibuster, just as they could to end it. In fact, senators have limited its use twice in the past decade, both times in regard to confirmations of presidential appointments. In 2013, Democrats established that a simple majority vote could advance nominees for lower-court judgeships and federal agencies. In 2017, the Republicans who then held the majority voted to allow a simple majority vote to confirm Supreme Court nominees. For now, most legislation can still be filibustered.
5. Doesn’t a filibuster last only as long as a senator keeps talking?
That’s a myth that can be traced to “Mr. Smith Goes to Washington,” the 1939 film in which Jimmy Stewart’s character filibusters to heroic effect. In reality, the filibuster has often been deployed to frustrate majority rule, or simply to rally supporters, as when Senator Strom Thurmond of South Carolina stood on the floor for 24 hours and 18 minutes in 1957 in an unsuccessful bid to stop a civil rights bill. Under the idea floated by Biden, Manchin and others, filibusters would more closely resemble “Mr. Smith” -- the vote would be delayed only so long as a bill’s opponents actively held the floor.
6. Can any bills make it around the filibuster?
Yes, but not many and it’s not easy. In 1974, the Senate adopted a procedure known as reconciliation that allows for expedited consideration of legislation related to spending, taxing and the federal debt limit. Under reconciliation, a simple majority is all that’s required for passage. But the process has limits: The Byrd rule -- named for Robert Byrd, a Democratic senator who represented West Virginia for 51 years -- requires that all provisions in a reconciliation bill have an impact on federal revenue, spending and deficits, and that no extraneous provisions are included. That forced Democrats to drop Biden’s proposal for a national $15 an hour minimum wage from the virus-relief package. Republicans used reconciliation to pass tax cuts in 2001, 2003 and 2017, and the Affordable Care Act, also known as Obamacare, achieved final passage only by using reconciliation. Democrats fear that priorities like measures on voting rights or immigration would not qualify for reconciliation.
The Reference Shelf
- QuickTake explainers on the reconciliation process and (from 2017) the filibuster and the Congressional Review Act.
- From the Congressional Research Service, a 2019 report on the Senate’s legislative procedures and a 2013 report on the filibuster.
- A Brookings Institution explainer and debate on the filibuster.
- A New Yorker article on “Kill Switch,” a book arguing for ending the filibuster by a former aide to Harry Reid, the Senate majority leader during President Barack Obama’s two terms.
- The start and finish of Jimmy Stewart’s filibusters in “Mr. Smith Goes to Washington.”
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