Filibuster 101
~ 6 minutes read
The bottom line: Neither party has had a consistent view on the filibuster. Instead, people are more likely to support changes to the filibuster when their party holds the majority in the Senate, and vehemently oppose such changes when their party is in the minority.
What is the filibuster?
In simple terms, the filibuster is a rule in the Senate that effectively requires legislation to have the support of 60 senators to pass — often referred to as a “supermajority”. What’s confusing about the measure is that a 60 vote threshold isn’t technically required to pass legislation, just to end debate or stop the addition of new amendments to the legislation.
The reason the filibuster effectively means that 60 votes are required for legislation to pass is because senators who do not support the bill often vote against ending debate, which ultimately blocks the Senate from moving forward to vote on the bill.
Is the filibuster good or bad?
Opinions on the filibuster are often linked to either what party currently holds power, or what legislation is being held up by its existence. If you ask each side what the function of the filibuster is, they will describe it to you in ways that demonstrate their opposition or support towards the measure.
People who want to reform the filibuster often bring up the following arguments to support their cause:
- The filibuster was not part of the original design of the Senate. It was made possible in 1806 when the Senate removed a provision allowing a simple majority to force a vote.
- It’s undemocratic to give so much power to the party who lost the election while preventing the party that won from carrying out its priorities.
- Both sides have supported reforming the filibuster while in power, so it’s hypocritical to claim that changing it would “break the Senate” when you’re in the minority.
People who want to keep the filibuster often bring up the following arguments to support their cause:
- Without the filibuster, the party in power has no checks on its ability to pass its entire legislative agenda.
- This would mean federal policy would become hyper partisan and change dramatically every couple of years. This constant swinging would throw the country into instability and make the lives of Americans wildly unpredictable.
- Both sides use the filibuster liberally while they are in the minority, so it’s hypocritical to claim doing so is “undemocratic” when you’re in power.
How have conversations about the filibuster changed over the years?
Members of both parties have shifted positions on the filibuster over the years.
In the past, when Republicans held the majority in the Senate, prominent Democrats such as Joe Biden and Senator Chuck Schumer were vocal in their opposition to ending the filibuster:
Senate Democrats used to defend the filibuster. What changed 🤔 pic.twitter.com/OMdrrbAK8d
— Heritage Foundation (@Heritage) January 11, 2022
And here is a tweet from Majority Leader Senator Schumer, highlighting a recent speech from President Biden arguing in favor of eliminating the filibuster:
You’re going to want to listen to President Biden make the case for taking the steps necessary to restore the function of the Senate so we can pass legislation in this Senate to protect the sacred right to vote: pic.twitter.com/p9KUFrzJPW
— Chuck Schumer (@SenSchumer) January 12, 2022
In 2017, then-Majority Leader Senator Mitch McConnell used the “nuclear option” (see “How would the Senate end the filibuster?” below for what this means) to change the number of votes required to confirm a new Supreme Court justice from 60 to 51 votes:
And here is a tweet from Minority Leader Senator McConnell highlighting his recent floor speech arguing in favor of preserving the filibuster:
The Framers built the Senate to protect against exactly the sort of inaccurate, irresponsible bullying which the President shouted at the country yesterday.
His reckless speech was the perfect case study for the importance of the Senate and its rules. https://t.co/bjuduHuaRW— Leader McConnell (@LeaderMcConnell) January 12, 2022
Although frequent shifts in opinion on the filibuster make it tougher to understand our contra-partisans’ position on this issue, we shouldn’t penalize people for changing their minds. After all, adapting to new information and circumstances is a key component of political mindfulness — so long as we examine our motivations for doing so.
Further reading
- By changing the rule: The filibuster is not in the Constitution, but is codified in the rules of the Senate. These rules can be changed if a two-thirds majority (67 senators) vote to change them. Ending the filibuster this way is highly improbable, since it requires more votes than the 60 vote threshold needed to end debate and vote on a bill.
- The “nuclear option”, or “reform by ruling”: This is a way to change the filibuster with only a simple majority. Put simply, it involves violating existing Senate precedent to create a new precedent where only a simple majority is needed to end debate. This option was used in 2017 to change the filibuster rules for Supreme Court nominees. Per the Brookings Institute:
“The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer (typically a member of the Senate) agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.”
