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Insiders and historians say the filibuster is what makes the Senate what it is, and different from the House. Others say that is precisely the problem with it. The filibuster has come under fire as a serious impediment to social change and popular will, critics say. As Joseph Biden’s presidency settled in with an activist agenda, the Senate’s unique filibuster rule has come under pressure to either be reformed or abolished altogether. In this Congress Report, congressional expert and Washington journalist Jamie Stiehm traces the history of the filibuster through to the implementation and usage of it in the Senate today.

The required sixty votes, three fifths of the Senate, to override a filibuster in a sharply divided Senate, is all but an impossible dream. The Senate is presently tied at 50–50. Strictly speaking, it is under Democratic control, since a tie goes to the White House. The vice president, Kamala Harris, would be called into the chamber to break a tie vote. Yet the “greatest deliberative body” lately seems like a lion without a roar with most major legislation facing a Republican filibuster and lacking the 60-vote threshold to overcome one.

In short, the filibuster makes it easy to thwart and hard to pass most bills in the Senate. Attempts to block a bill, i.e., a filibuster, are commonplace. Under recent Republican rule, and now in a new era of Democratic control of Capitol Hill, neither party has had the supermajority needed to overcome the vaunted filibuster.

Cabinet secretaries are exempt from the rule of sixty. They may be approved by a simple majority of senators.

The tradition-bound Senate is stuck in a partisan impasse, a stark contrast to the robust House floor calendar. In 2019 and 2020, the Democratic House of Representatives proved an engine of passing progressive bills that were then stymied by Senate filibuster or inaction. House speaker Nancy Pelosi orchestrated this flurry. (The House votes go by simple majority rule.)

Mounting a filibuster is one thing, but the protest dies if it doesn’t have the support of sixty votes after two days. Invoking “cloture” is a game both sides play to force an end to a filibuster. Cloture is the Senate procedure to break a filibuster with a time limit. (The word is related to “closure.”) By design, the filibuster greatly benefits the minority. But it can also paralyze the majority.

Defenders of the filibuster, such as West Virginia Democratic senator Joe Manchin III say it forces consensus and moderation. “The filibuster is a critical tool to protecting…our democratic form of government,” Manchin declared in a Washington Post op-ed. “That is why I have said it before and will say it again to remove any shred of doubt: There is no circumstance in which I will vote to eliminate or weaken the filibuster.” Senators are more motivated to reach out to colleagues on the other side of the aisle, as Manchin has done more than most.

This is a Washington debate that went national in 2021, as the public became more aware of the strange Senate stranglehold even on bipartisan legislation. It all comes down to the filibuster, which has been watered down for judicial nominees.

The Filibuster’s Colorful Past and Dull Present

The storied Senate filibuster, where a senator takes the floor day into night, to passionately protest a looming bill, still lives in the American imagination. The Hollywood classic “Mr. Smith Goes to Washington” showed “Senator” Jimmy Stewart take a heroic lone stand on the floor.

However, in real life, the filibuster is less impressive. The truth is that senators don’t even debate or defend filibusters anymore, for at least a couple of decades. Losing the famed oratory of old—like spellbinding Henry Clay, Daniel Webster, and the 20th century figure, Dale Bumpers—is the price they pay for staging a filibuster with zero action: not floor speeches nor a “colloquy” in which senators engage each other in questions. Senators from opposite points of view don’t know each other as well as a result. All that happens is that time passes before a cloture vote, on the second calendar day. Predictably, most such votes fail to reach the magic number of sixty. Those measures that clear that high bar then may be passed by a majority vote. A Senate bill to address Asian American hate crimes promises to be the first social legislation passed of 2021 by the usual winding way.

American history will not forget the Senate’s Southern Democratic filibuster of the landmark Civil Rights Act of 1964. President Lyndon Johnson put his heart and soul into defeating the sixty-day stubborn stand started by Senator Richard Russell of Georgia, known as an old “bull,” with a palatial Senate office building named after him. This filibuster was a sixty-day affair, a team effort, truly ”epic” in its timing a century after the Civil War. Other Southern senators who took part in the floor filibuster included Strom Thurmond of South Carolina, Sam Ervin of North Carolina, and William Fulbright of Arkansas. Eventually Johnson, working closely with Republican Everett Dirksen of Illinois—also with a Senate building in his name—won the day with a resounding seventy-one votes.

This was a majestic moment in Senate history. Known for his mastery of the Senate, Johnson of Texas prevailed over his fellow Southern Democrats’ filibuster by telling the nation the bill honored the slain President John F. Kennedy.

It’s safe to say the Senate rarely has high-water marks like that, every generation or so. It’s also a fact that filibusters have not pressed forward meaningful social advances. In fact, the pending House act “For the People,” a sweeping voting rights act, was voted on as its very first bill in 2021. Its swift passage brings it before the Senate, with the filibuster rule intact. The past association with white Southern racism has given the filibuster a bad name. Raphael Warnock, a Black freshman senator from Georgia, pointedly declared that a Senate rule to protect minority rights should not be a weapon against minority rights in American democracy. He received a standing ovation for his first floor speech.

Filibuster Ended for Court Nominees

If you traced an arc from 2013 to 2021, the decline in the Senate’s reliance on the 19th century filibuster custom is clear. Democratic majority leader Harry Reid of Nevada first exercised the “nuclear option” during President Obama’s second term. In 2013, he nixed the filibuster option for federal judges out of frustration with Republican refusal to confirm most presidential nominees. Reid, a former boxer, felt boxed in by the sixty-vote filibuster and so took the historic step of dispensing with it. From then on, a federal judge nomination could be passed with a simple majority vote.

At the time, Senate Republican leader Mitch McConnell of (Kentucky condemned the move and shrewdly predicted Democrats would live to regret it. He was right. Along came 2017, with a Republican president, Donald Trump. In only four years, Trump had an extraordinary three Supreme Court open seats to fill. He was assisted by a narrow Republican majority.

Then it was McConnell’s turn to abandon a long-lasting Senate rule: the filibuster for Supreme Court nominees. It was the second “nuclear option” in five years, proving that the laws of physics apply at times to Senate politics: an equal and opposite reaction. From 2017 on, Supreme Court Justices were approved by a straight majority. None of Trump’s arch-conservative Federalist Society picks—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—could have won sixty votes in the almost evenly divided Senate, given that Democrats vociferously opposed all three Trump nominees.

The Senate Filibuster: How It May Fare in the Biden Years

The arc of the filibuster: where will it end? For the first time, the stars seem aligned for the Senate to seriously consider getting rid of it. The fifty Democrats can do it if they are unanimous. In any case, Democrats have a rare trifecta: the presidency, the Senate, and the House. Biden, even though he cherishes the clubby Senate he belonged to for thirty-six years, does not wish to surrender his own highest hopes and campaign pledges to that venerable institution.

With the filibuster in political play and a source of deep frustration, both Biden and Manchin have suggested that a return to the “talking” filibuster might be the next best step. Actually forcing senators to speak for hours on the finer points of their position might chill enthusiasm for blocking every bill that comes through. The Senate train might speed up and produce more laws as a result. That would be a welcome change for many Americans, after years of McConnell bringing little to the floor but judicial confirmations. Lawmakers like to make laws.

Biden had great good luck with his early ambitions and aspirations. His COVID-19 relief and stimulus bill, the American Rescue Plan, worth nearly $2 trillion, did not have to go the filibuster route. In the arcane ways of the Senate, the parliamentarian ruled it could be passed with a simple majority, which it did, 50–49. The exception, known as “reconciliation,” has to do with whether a bill has direct impact on the congressional budget.

Biden’s second large bill, on infrastructure and jobs, will also take the easier path of reconciliation. Surpassing $2 trillion, the American Jobs Act is bound to cleave the Senate and likely to squeak by with one or two votes along party lines. As Republicans become more conservative, Democrats have become more liberal by the Senate law of political physics.

Then the soul-searching on the filibuster’s place in the 21st century Senate may begin. In the past, it sparked drama on the floor. It was rarely used as a silent spoiler, as is the ingrained habit nowadays. On the one hand, if the Democrats can unite—and that’s a big if—to muster all fifty votes to abolish the filibuster, that could change the character of the Senate overnight. Members might have to work harder and vote more often on real legislation. On the other hand, clashes might be even more acrimonious.

Ironically, ending the filibuster forever does not require a filibuster-proof sixty votes.

 
Document Citation
Stiehm, J. (2021). The Senate Filibuster: Not What It Used To Be. http://library.cqpress.com/congress
Document ID: cqelsc-2240-115593-2981244
Document URL: http://library.cqpress.com/congress/cqelsc-2240-115593-2981244