What Is the Filibuster and How Can the Senate Reform It?
In June, Senate Republicans blocked a landmark piece of voting rights legislation, the For the People Act. In October, they blocked a revised, compromised version, the Freedom to Vote Act. In November, it was the John Lewis Voting Rights Advancement Act that failed. If Democrats hold a slim majority in the U.S. Senate, why does progress on crucial voting rights bills keep stalling? The answer lies in a procedural tool in the Senate to delay or block the vote on a piece of legislation — the filibuster.
In today’s Explainer, we outline how the filibuster actually works, its history of thwarting progressive policies and given the intransigence of today’s Republican party, what steps Senate Democrats would need to take to bypass it and enact voting rights legislation.
What is the filibuster?
The term filibuster is derived from both Dutch and Spanish words that were used in the 1800s to describe pirates and unauthorized military expeditions, mainly in the Caribbean and Latin America. Instead of hijacking boats, the word soon became part of the American political lexicon for hijacking debate in the federal government.
After a bill is introduced in the Senate and moves through the appropriate committee, it heads to the floor for a vote. Before a vote can happen, however, debate needs to take place. Historically, senators took advantage of unlimited debate to indefinitely delay a bill from getting to a vote — this strategy is known as a filibuster. In 1917, after lawmakers became fed up with long, disruptive speeches, they adopted Senate Rule 22 which closed debate if two-thirds of Senators were in favor (the threshold that was later reduced to 60 votes).
To summarize, the Senate only requires a simple majority, or 51 votes, to actually pass a bill after debate has ended. But, since it takes 60 votes to close debate, the 60 vote threshold is effectively the new requirement for passing most bills.
What does a filibuster look like in action?
What happens if the Senate wants to advance a piece of legislation? Let’s talk through the process.
- In this case, let’s say Senate Majority Leader Chuck Schumer (D-N.Y.) supports a bill. Sen. Schumer will ask for “unanimous consent” to end debate and move to a vote.
- Any senator who wants to prevent the legislation from immediately moving to a vote can do so by standing and saying, “I object.” (In previous decades, senators were required to stand and debate the bill for the entirety of the time they wished to block the vote, known as a “talking filibuster.” This criteria has been removed.)
- After the objection, the only way to move forward is for Schumer to file a motion for cloture, or the end of debate. This is the vote that requires 60 votes.
- If less than 60 senators support cloture, then a bill has “been filibustered” and does not move forward. If more than 60 senators support cloture, then there can be a later vote to adopt the measure.
It’s important to note that a filibuster can be used multiple times during the course of a single bill’s lifetime — a filibuster can block a “motion to proceed” (allowing the Senate to bring up a bill), amendments or the final vote itself. The recent filibusters of voting rights legislation have dealt with “motions to proceed,” so Republicans aren’t blocking the final vote on the bill but preventing consideration of the policy to move forward at all, consequently silencing all deliberation and consideration of amendments.
How has the Senate used the filibuster over the years?
There have been over 2,000 filibusters since 1917, but half of these have occurred in the last 12 years alone. The dramatic increase in filibusters raises concerns about the effectiveness of the Senate, especially when it is used to prevent policy debate in supposedly “the world’s greatest deliberative body.” While there are a few loopholes to avoid the filibuster (for example, the annual budget reconciliation process), most legislative priorities, especially the wide-sweeping changes pushed forward by Democrats, must contend with it.
Take a quick look at the history of the filibuster and you’ll see that it has long been used in opposition to civil rights and progress. Southern Senators repeatedly filibustered anti-lynching bills throughout the 1920s and 1930s and blocked a law outlawing poll taxes in 1942. While the Senate did away with the “talking filibuster” in the 1970s, the longest individual speech recorded was segregationist Sen. Strom Thurmond’s (R-S.C.) 24-hour-long filibuster of the 1957 Civil Rights Act.
Let’s be clear: The obstruction of civil rights legislation in the 20th century parallels the place we find ourselves today. Right now, the urgency around voting rights legislation and the debate over whether to reform or completely eliminate the filibuster has only intensified.
What are the options for reform?
The simplest way to eliminate the filibuster is to change the language of Rule 22 itself. This is not a realistic possibility, though, because any resolution to change the Senate’s standing rules would first have to overcome a cloture vote with two-thirds in favor. There are other options, however — tactics that tweak procedural rules and only require the support of a simple majority.
The “nuclear option” has been used before. The Senate may be prepared to do it again.
In the face of Sen. Mitch McConnell’s (R-Ky.) unprecedented filibustering of President Barack Obama’s executive and judicial appointments, then-Majority Leader Harry Reid (D-Nev.) chose the “nuclear option” in 2013. Senate Democrats removed the 60-vote filibuster for all presidential nominees except those to the U.S. Supreme Court. McConnell extended this rule to include Supreme Court appointees in 2017.
The colloquial “nuclear option” is a method to change the Senate rules with only a simple majority in favor. The “nuclear option” exploits a procedural loophole that allows a new interpretation of Senate rules to become precedent. To do so, the majority leader has to bring forward a non-debatable point of order, stating that a vote on cloture is by majority vote (which we know to be untrue based on the current rules that state cloture takes 60 votes). Since this is a new interpretation of Senate rules, the presiding officer will rule against this point of order, sticking to precedent. However, the presiding officer’s objection can then be overturned on appeal by only a simple majority, hence changing the Senate rules. Consequently, Democrats could lower the cloture vote minimum from 60 votes to a simple majority if all 50 members of the Democratic Caucus agree with such a change.
In the face of Republican voter suppression efforts across the country, Democrats could carve out an exemption for voting rights legislation.
“Protection of democracy is so fundamental that it should be exempt from the filibuster rules,” argued former Georgia representative and voting rights activist Stacey Abrams.
Similar to how the 2013 rule change applied narrowly to certain types of presidential nominations, Democrats could propose eliminating the filibuster for specific issues like voting rights, democracy or constitutional measures. In doing so, Democrats preserve the filibuster for other types of legislation and in the future where they may find themselves in the minority, but still pass the crucial voter protections that are necessary today.
Short of completely eliminating the filibuster, there are a handful of other reforms on the table.
Democrats could take several other routes to reform the filibuster, which include the following: removing the filibuster option against “motions to proceed”; requiring a higher number of senators to object to an immediate vote, rather than just one; lowering the cloture threshold from 60 to 57 or 55, for example; or reinstating the “talking filibuster” with the hopes to reduce their frequency. No matter which options Democrats consider, they will need all 50 members of their caucus on board to enact the change.
In today’s Republican party, led by McConnell, there are no moderates on voting rights. Consequently, there are no revisions or compromises on the policies themselves that could get Republicans on board with voting rights legislation. Acknowledging this reality in a letter to Senate colleagues on Nov. 14, Schumer vowed nonetheless to keep working towards passage. He wrote, “to that end, a number of our colleagues – with my full support – have been discussing ideas for how to restore the Senate to protect our democracy. Those conversations will continue in earnest this coming week.” Schumer stated Democrats would work to find “an alternative path forward to defend the most fundamental liberty we have as citizens” — an alternative path where, in the near future, we may finally see significant changes to the filibuster.