While the US Senate has temporarily averted a showdown over its so-called filibuster rule, the issue appears likely to resurface, as the wafer-thin Democratic majority endeavors to pass Joe Biden’s legislative agenda into law – and Republicans try to stop them. Here’s what you need to know:
What is the filibuster?
There is a movie version, in which an impassioned senator holds the floor by speaking at marathon length to block or force an issue – and a much more common version, lodged deep in the parliamentary weeds. The latter, less cinematic version, is the current focus.
So what’s the gist?
The filibuster is a way for a relatively small group of senators to block some action by the majority. The filibuster rule allows a minority of 41 senators (out of 100 total) to prevent a vote on most species of legislation.
Whether you see that capability as an important safeguard against the tyranny of the majority, or a guarantee of institutional paralysis, likely corresponds with your party identity and who controls the Senate at the time.
For progressives, what is the strongest argument in favor of keeping the filibuster?
The legislative filibuster has been used by Democrats in recent years to block funding for Donald Trump’s border wall project, to protect unemployment benefits and to stop Republicans from restricting abortion access.
Also, some Democrats fear that if there is no filibuster, Republicans will, next time they hold the Senate majority, pass horrifying laws, for example to restrict voting access, encourage environmental despoilment, reward Wall Street, curtail reproductive rights – who knows.
Why are so many influential Democrats calling for an end to the filibuster?
Democrats say Republicans have abused it serially, forcing their minority vision on the entire country with narrow-minded parliamentary tactics and blocking policies the people support, such as gun control.
Abolishing the filibuster rule would theoretically allow Democrats to finally get some things done while they hold power: immigration reform, climate legislation, voter protections, racial justice legislation, and so on.
Would ending the filibuster really work?
Ending the filibuster in 2021 may not net Democrats the legislative victories they dream of. Because they hold only very slight majorities in both houses, Democrats would need to maintain a unified caucus to take advantage of a Senate sans filibuster. And that would mean only passing legislation that the most centrist senators agree with. So, it’s complicated.
Should the Senate really get rid of the filibuster?
There are risks, definitely, but many top Democrats have concluded that the time is nigh, because Senate Republicans led by Mitch McConnell have grown so relentlessly obstructionist that Democrats are powerless to enact policy even after they win elections. A study by the Center for American Progress found that Republicans have used the filibuster roughly twice as often as Democrats to prevent the other side from passing legislation.
Basically, it’s down to the last straw. Democrats have put McConnell on notice that if Republicans continue trying to block everything that fairly elected Democrats would like to do, it’s bye-bye filibuster.
“It’s going to depend on how obstreperous they become,” Biden told reporters last summer. “But I think you’re going to just have to take a look at it.”
But couldn’t Republicans just block any effort to end the filibuster … with a filibuster?
No. In a paradox best left alone, the power of the filibuster may be exorcised by a straight majority vote. Note that as of January 2021, the Democrats might not even be able to muster such a majority, despite controlling the Senate, with some centrists (and Bernie Sanders) wanting to keep the filibuster. So maybe Democrats would not be able abolish the filibuster even if they tried. For now. But that could change.
Wouldn’t scrapping the filibuster violate hallowed history?
On the contrary. The filibuster has a generally ignominious history, with some moments of glory. It’s not in the constitution and it emerged in its current form only through the exigencies of wartime a century ago. Since then, the filibuster has prominently been used to prop up racially discriminatory Jim Crow laws.
Two of the most famous uses of the movie-version filibuster mentioned above were by the segregationist senator Strom Thurmond, who in 1957 held the Senate floor for more than 24 hours in an attempt to block civil rights legislation – and who mounted a sequel filibuster to sequel legislation in 1964.
“For generations, the filibuster was used as a tool to block progress on racial justice,” Senator Elizabeth Warren, who is eager to bin the filibuster, told the National Action Network in 2019. “And in recent years, it’s been used by the far right as a tool to block progress on everything.”
Who else hates the filibuster?
In a separate address at the funeral of the civil rights leader representative John Lewis in 2020, Barack Obama laid the filibuster on the chopping block.
“Once we pass the John Lewis Voting Rights Act, we should keep marching,” Obama said, referring to a bill to stop minority disenfranchisement. “And if all this takes eliminating the filibuster – another Jim Crow relic – in order to secure the God-given rights of every American, then that’s what we should do.”
Which party pioneered filibuster abuse?
The who-started-it argument about killing the filibuster revolves around federal judicial nominees and whether they could be filibustered.
In brief, the Democrats were first to filibuster a federal judge nominee, in response to a loathed George W Bush pick who at the time was taken to be so uniquely unacceptable as to warrant unusual measures.
Years later, McConnell adopted the strategy on steroids, blocking an army of Obama-nominated judges. In response, the Democrats in 2013 killed the filibuster for executive nominees below the level of supreme court justice.
In 2017, to begin cramming the supreme court with what would turn out to be three Donald Trump justices, McConnell killed what was left of the judicial filibuster. Only the legislative filibuster remains, and it’s on life support.
Will the gentleman yield his time?
Thought you’d never ask.