Is the filibuster a drag on democracy?
Loading...
| Washington
To scrap or not to scrap? Lawmakers are again wrestling with that recurrent, abiding question about the filibuster, the wonky Senate procedure that some say is a key agent of obstruction in Congress.聽
President Donald Trump has placed himself squarely in Camp Scrap, urging Senate Republicans to get rid of the filibuster聽so that the GOP can muscle through legislation on controversial issues like immigration without needing bipartisan support.聽
Former Democratic Senate Majority Leader Harry Reid made a similar case earlier this month , in which he urged his party to eliminate the procedure once they regain power. Otherwise the Senate will never act on issues such as climate change and guns, he said.聽
Why We Wrote This
The Senate filibuster is meant to protect legislative minority rights and encourage fruitful debate. But in today鈥檚 political climate, important voices in both parties increasingly claim it is an obstacle to progress.
A few days later, current Majority Leader Mitch McConnell, R-Ky.,聽, defending the filibuster and accusing Democrats of wanting to run roughshod over Senate tradition in order to 鈥渋nflict鈥 a 鈥渓aundry list of socialist policies鈥 on Middle America.聽
The 2020 Democratic presidential contenders are also split on the issue. Some agree with former Senator Reid that it鈥檚 blocking liberal change. Massachusetts Sen. Elizabeth Warren, for instance, backs its elimination. Others warn that in the long run Senate Democrats would regret losing such a powerful legislative weapon.聽
How much is the filibuster really to blame for legislative gridlock? What would it take to get rid of it, and what could the long-term effects look like?
Here鈥檚 a primer on the Senate鈥檚 favorite scapegoat, and the cases for and against it.聽
What鈥檚 a filibuster for?
First, what聽is聽the Senate filibuster?
The filibuster is, in essence, any attempt by a senator to block a measure by preventing it from coming to a vote.聽
One way of doing that is to physically stand on the Senate floor and speak 鈥撀燽ecause according to Senate rules, a senator can pretty much talk for as long as he or she wants (with some exceptions), and a bill can鈥檛 go to a vote聽if any senator still wants to say something. Think 鈥淢r. Smith Goes to Washington,鈥 the 1939 film where Jimmy Stewart鈥檚 character, a senator named Jefferson Smith, speaks on the Senate floor for 25 hours to postpone the vote on an appropriations bill (and defend his innocence in a villainous graft scheme).聽
Today鈥檚 filibuster, though, is a lot less dramatic, most often coming by way of a clunky procedural mechanism called cloture.聽
Before 1917, a senator could stand and speak until the end of time, if he wanted. Debate would end only when the senator gave up or got concessions he could live with from his colleagues. But that year, President Woodrow Wilson 鈥 pressured to act against Germany toward the end of World War I 鈥 urged senators to create a way to close debate more quickly, and Rule 22 was born.聽
Under Rule 22, a group of at least 16 senators can file a cloture motion, or a motion to end debate over a piece of legislation. If three-fifths of the senators present 鈥 typically 60 鈥 vote to invoke cloture, debate ends. The Senate then moves to an up-or-down vote on the bill in question.
These days, senators are 鈥渇ilibustering鈥 when they agree to be part of the minority needed to vote against cloture on any debatable matter the Senate is considering. The bottom line is that a large enough minority can block action on a bill or personnel nomination 鈥 even if the bill or nomination itself聽would have had enough support to pass.聽
鈥淵ou鈥檙e no longer requiring a senator to stand on the floor to keep talking,鈥 says Mark Schmitt, director of policy reform at the Washington think tank New America. 鈥淚t just becomes, 鈥楧o you have 60 votes?鈥欌澛
The 鈥渘uclear option鈥
When people talk about abolishing the filibuster, what do they mean 鈥 and how would it happen?聽
The word 鈥渇ilibuster鈥 never actually appears in the Senate rule book. Eliminating the filibuster today means lowering the 60-vote threshold needed to block a measure to a simple majority by amending existing Senate rules. If only 51 senators were needed to end debate, the reasoning goes, then it would be much harder for the minority to block or delay the final vote on a bill.
Now, a Senate rule can be changed via majority vote on a simple resolution. But if the change is controversial and opponents are willing to mount a filibuster, rules changes require a supermajority of senators 鈥 typically 67 鈥 in favor.
In recent years, senators who鈥檝e wanted to change the rules haven鈥檛 been able to get that supermajority. Instead they鈥檝e employed what鈥檚 called the 鈥渘uclear option.鈥
In 2013, Democrats under Majority Leader Reid ignored the two-thirds rule and voted by simple majority to lower the threshold needed to invoke cloture during the confirmation process for almost all executive nominations 鈥 effectively eliminating the filibuster for most presidential appointees. In 2017, Republicans under Majority Leader McConnell did the same to include Supreme Court nominees.聽
In both cases, the senators pushing for change wanted to speed up the process of confirming appointees and rely less on their colleagues from across the aisle to do it. Each time, they used arcane legislative maneuvers that some experts judge aboveboard, but others say involved violations of previously existing Senate procedures.
Given how slim Senate majorities have become, and how difficult it is to get 67 senators to agree on anything, any effort to abolish the legislative filibuster would likely again involve the nuclear option.
Why boot the filibuster?聽
It sounds like the filibuster is meant to give the minority leverage. While the 2020 map looks better for Senate Democrats, who are in the minority now, than the 2018 one did, they still face an uphill climb to the majority.
So why would Democrats push to get rid of the filibuster, which would theoretically benefit a Republican majority? The filibuster, after all, historically empowers a single senator, or a large enough minority of senators, to slow down debate and encourage bipartisan buy-in.聽
Except the filibuster doesn鈥檛 really work that way anymore. Over the years, both parties have used the filibuster more as a tool to block laws indefinitely rather than to negotiate any sort of meaningful deal with the other side, congressional scholars say.
鈥淭he filibuster could be a useful tool in a more open Senate,鈥 Mr. Schmitt says. 鈥淚t all works differently when everything鈥檚 following party lines.鈥
Some suggest that a filibuster-free Senate could advantage the left in the long haul. While Senate majorities are increasingly short-lived, progressives could use their time in the sun to pass sweeping social reforms 鈥 and聽some theorize聽that it鈥檚 incredibly difficult to roll back major social benefits once they鈥檝e been passed.聽
But generally, those calling for filibuster reform today see Democrats beating the odds and reclaiming unified control of government in 2020, only to find Republicans blocking their agenda at every turn. Republicans tend to control states with smaller, less diverse populations, but 鈥 the argument goes 鈥 the filibuster as used today could give the GOP an effective veto over legislation supported by both a majority in the Senate and a majority of Americans.聽
鈥淢ore and more Democratic activists are picking up on the fact that the filibuster, either by purpose or unintended consequences, is benefiting a certain amount of small-population states,鈥 Jim Manley, a former top Democratic aide,聽tells The Atlantic. 鈥淭here鈥檚 an inherent unfairness to the Senate that more and more people are focusing on.鈥
Tradition!
What鈥檚 the case for keeping the filibuster in place?聽聽
One argument rests on tradition. The framers of the Constitution always envisioned the Senate as a more deliberative body than the majority-run House of Representatives; James Madison described it as a 鈥necessary fence鈥 against the 鈥渇ickleness and passion鈥 that tended to influence members of the House. According to this line of thinking, the filibuster serves as a tool that helps maintain that deliberative quality.聽
The cynical view is that the filibuster 鈥 or specifically, the supermajority requirement to end debate 鈥 makes it easier for senators to duck out of difficult votes. Because the 60-vote threshold is almost impossible to hit on any legislation, senators can take a more radical position than they鈥檇 like, or not take a position at all, without suffering blame or consequence.聽
鈥淭he filibuster has become a way to shift blame to someone else, to [either] an oppressive and draconian majority or a totally empowered minority,鈥 says James Wallner, a senior fellow at the R Street Institute who鈥檚 written extensively about Senate procedure. 鈥淚t鈥檚 a way to say, 鈥業 can鈥檛 do X. Therefore it鈥檚 OK for me to stop trying.鈥欌
Besides, he says, getting rid of the filibuster wouldn鈥檛 necessarily end Senate gridlock. Growing partisanship will still be a problem. So will the precedent that gives the majority leader the ability to be recognized on the floor first 鈥 because that allows him (or her) to offer the maximum number of amendments permitted on a piece of legislation before anyone else can. (The process is called 鈥渇illing the amendment tree,鈥 and it鈥檚 an effective way of preventing senators from offering amendments to a bill that the leader doesn鈥檛 want debated.)聽
Using the nuclear option to get rid of the filibuster would only further destabilize the Senate and prove that senators don鈥檛 really care anymore about following the rules that govern the chamber, Mr. Wallner says.聽
Indeed, in his view, the biggest obstructions to Senate productivity are senators themselves. The Senate, he says, is built to produce legislation 鈥 as long as senators are willing to work through multiple failed votes, and understand that they won鈥檛 always be able to control or predict the outcome. But that鈥檚 not how senators approach the process anymore.聽
鈥淭hey treat the Senate like it鈥檚 a factory that produces legislative widgets, and leaders think their job is to make sure the outcome is the widget they designed,鈥澛燤r. Wallner says.聽鈥淭hey don鈥檛 want to put in the effort.鈥