March 14, 2022
Recently, the filibuster has been in the news, with many Democratic leaders calling for its abolishment in the Senate. This would be a rash decision that would eliminate a powerful political tool for years to come. This tool protects the minority party and the country against rash and extreme decisions and viewpoints. However, many people are not familiar with how the filibuster works.
The filibuster is one of the most famous tools that senators have at their disposal. The filibuster is a political practice through which legislators can obstruct a vote on legislation and executive nominees by delaying procedure. Senators, under the rules of the Senate, may have the floor for as long as they choose, and therefore may delay proceedings indefinitely. When the Senate wants to vote on a bill, a vote must occur to end debate, which requires a three-fifths vote supermajority. This then begins the process of voting on the bill.[i] The rules of cloture allow senators in the minority to block debate. With the Senate split evenly between the two major parties, and with the current degree of political polarization, it is often difficult for cloture to occur in meetings concerning contentious subjects. As a result, the filibuster has gained great notoriety in modern politics. There are two ways to initiate a filibuster; the first is the talking filibuster, in which a Senator gives a speech on the floor and refuses to yield. This often goes on for hours, and, occasionally, even overnight. The second way is the silent filibuster, a relatively new use of the technique that occurs when 41 or more senators threaten a filibuster. With 41 Senators comprising more than two-fifths of the total Senate, the Senators can therefore prevent the three-fifths vote needed to end the filibuster. In this instance, the Senate majority will usually refuse to call a vote. [ii]
This rule has most recently been publicized by the recent calls of many Democrats to abolish the filibuster in order to allow key Democratic legislation to pass. With the Senate in a 50-50 split, and Vice President Harris the deciding vote, there has been many pieces of legislation that have been filibustered. These calls have been amplified as two key Democratic senators are holding out from voting to eliminate the filibuster: Senator Joe Manchin of West Virginia and Senator Kyrsten Sinema of Arizona. Both have faced public and political criticism, including from within the Democratic party. Sinema, in particular, has experienced a drastic drop in funding and support, facing the very real possibility that she will face a primary challenger. Yet, these two senators are the only ones putting aside short-term gains in favor of considering the future. This is because the elimination of the filibuster would be a colossal mistake—one that could cost Democrats their most useful tool for years to come. [iii]
With the 2021 Build Back Better legislation stalling, there are numerous appeals by Democrats to eliminate the filibuster in the Senate. Many Democratic senators are focused on this matter solely in order to pass the Build Back Better programs, disregarding the impact that the abolition of the filibuster may have on future of the party. If the filibuster is successfully eliminated, then the Republicans would face little challenge in passing conservative legislation in the future, as they are projected to win back control of both the House and the Senate in the upcoming elections. While Build Back Better and other legislation is important, it is not worth losing one of the few tools that the minority party possesses in the Senate.[iv]
One of the arguments against the filibuster is that of its history with civil rights. Many of the filibusters used in the mid-20th century were to impede legislation concerning civil rights. Pro-slavery filibusters were used to block the passage of important bills like an anti-lynching bill and the Civil Rights Act of 1957. However, over time, the filibuster has evolved to become an instrument for other issues including appointments and other topics of legislation. While appointments can longer be subject to filibusters, legislation still can. If the Democrats truly want to pass important voting legislation, like the John Lewis Voting Rights Advancement Act, they could create an exception in the filibuster rules for legislation regarding voting rights. This has been done before by both parties: in 2012 with then-Senate Majority Leader Harry Reid lowering the passing threshold to 51 votes for judicial nominees, and in 2017 when then-Senate Majority Leader Mitch McConnell eliminated the filibuster for Supreme Court nominees. These set a strong precedent that the Democrats could use to justify eliminating the filibuster for voting rights legislation that would positively affect millions of underrepresented and historically underprivileged voters.
The filibuster protects the minority, but it also protects against extreme swings to the far reaches of either political party. If the filibuster did not exist, parties could implement extreme and unpopular laws that do not represent the country but rather a fraction of the country. The filibuster has protected against these extreme swings, and forced lawmakers to work and come to a compromise on countless bills. This is as the “Founders” intended, as James Madison explained in Federalist No. 10, where he wrote, “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”[v] Madison argued against the “tyranny of the majority” and for the protection of the minority.[vi] The filibuster does just that, giving protection to the minority and the country against the whims of the extreme reaches of the parties.
But what if the Republicans choose to eliminate the filibuster when they return to power, whether that be in a few months or a few years? While this might be a concern if the Republicans were also interested in getting rid of the filibuster, the Republicans have shown no willingness to do so, even when they maintained the Senate majority. Senate Minority Leader Mitch McConnell has even said that the use of the filibuster protects the views of the minority and gives everyone a voice, even when there is not a divided government.[vii]
While the recent push to abolish the filibuster has failed, there will be more challenges in the future. There has been extraordinary pressure on Senators Sinema and Manchin to support the anti-filibuster movement. This has resulted in several key fundraising groups withdrawing their support for the Senators, as well as increasing voter dissatisfaction, as the anti-filibuster stance is popular among Democratic voters. This financial and political pressure could force the Senators to vote for the elimination of the filibuster. However, for now, they are the only two Democratic senators who are thinking strategically long-term, recognizing the power of the filibuster in the near and far future. Manchin has stated in a speech that, “Allowing one party to exert complete control in the Senate with only a simple majority will only pour fuel onto the fire of political whiplash and dysfunction that is tearing this nation apart—especially when one party controls both Congress and the White House.”[viii] These words show an understanding of the power of the filibuster and its protection of the minority, even when under immense pressure to remove that protection for substantial, yet short-term political gains.
[i] 179. “The Filibuster, Explained.” Brennan Center for Justice, February 18, 2022. https://www.brennancenter.org/our-work/research-reports/filibuster-explained.
[ii] “Filibuster.” Wikipedia. Wikimedia Foundation, February 20, 2022. https://en.wikipedia.org/wiki/Filibuster.
[iii] Carney, Jordain. “Manchin, Sinema Join GOP to Sink Filibuster Change for Voting Bill.” TheHill. The Hill, January 20, 2022. https://thehill.com/homenews/senate/590535-manchin-sinema-join-gop-to-sink-filibuster-change-for-voting-bill.
[iv] “The Build Back Better Framework.” The White House. The United States Government, December 3, 2021. https://www.whitehouse.gov/build-back-better/.
[v] “Federalist Papers No. 10 (1787).” Bill of Rights Institute. Accessed February 22, 2022. https://billofrightsinstitute.org/primary-sources/federalist-no-10.
[vi] “Tyranny of the Majority.” Tamás Nyirkos, April 5, 2018. https://nyirkos.com/tyranny-of-the-majority/.
[vii] ABC News. ABC News Network. Accessed February 22, 2022. https://abcnews.go.com/Politics/senate-filibuster-calls-change-voting-rights/story?id=82186354.
[viii] “Manchin Again Reiterates His Commitment to Protecting Filibuster.” U.S. Senator Joe Manchin of West Virginia, January 13, 2022. https://www.manchin.senate.gov/newsroom/press-releases/manchin-again-reiterates-his-commitment-to-protecting-filibuster.
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