The History of the Filibuster (and Why It’s Suddenly in the News Again)

With the election less than seven weeks away and the Republicans increasingly looking in trouble nationwide, noise is being made by Republicans about Democrats potentially ending the filibuster in the Senate (the so-called “nuclear option”, a term that is intentionally alarmist), should they win in November.  This is nothing new, and both parties are guilty of using the possibility of the opposition party coming into power and ending the filibuster as a scare tactic.  

In this cycle, with Trump potentially costing Republicans down-ballot races all over the country, Democrats stand a chance of shooting the moon and completing a trifecta in the federal government (i.e. control of the Presidency, the Senate, and the House).  If they were to do so, and then eliminate the filibuster in the Senate, the path would be cleared for the party to push through Democratic legislation as they would no longer need 60 votes to pass their agenda.

Whether they will manage to overtake the Republicans in the Senate is an open question, and there is no guarantee that a Democratic majority would end the filibuster (and in fact, parties before have had a “trifecta” and not done so).  While we wait for Election Day here’s a primer on what exactly the filibuster is, why it’s important, and what might happen if it disappears.

What is a filibuster?

As simply as possible, the filibuster is a procedure within the arcane rules of the Senate which allows a Senator to delay the closing of argument over a piece of legislation, as no vote can take place until arguments have ended.  Traditionally this was done in the most straightforward manner possible, with the Senator or Senators filibustering a bill simply talking endlessly for hours, never ending their argument and never ceding the floor.  Senators would talk aimlessly, read phone books, and simply continue to chew up time until they were physically unable to continue.  The longest filibuster on record was over 24 hours (Senator Strom Thurmond filibustering the Civil Rights Act in 1957).

Most filibusters now are not so dramatic.  More often, the minority party simply threatening to filibuster a bill is enough to keep it off the floor entirely, with actual Senator-talking-forever style filibusters mainly used by individuals (we see you Rand Paul) to gain media exposure for a point of view they feel is being ignored.

Notably, the filibuster is not an institution enshrined by law or the Constitution, but rather is enacted by the rules of the Senate, which can (and have) been changed by the Senate itself with a simple-majority vote.  This means a party with 51 votes (either 51 Senators or 50 + the Vice President) could change the rule to eliminate filibusters.  Keep this in mind.

Why is the filibuster important?

A filibuster can be ended by a vote of ‘cloture’, but Senate rules require a 3/5ths vote (60 in a 100-seat Senate).  This means that the de facto number of votes required to pass any significant legislation has been raised from 50 to 60, and with the closely contested two-party system in the United States it is a rare majority that clears the 60-vote threshold.  

This change has had the effect of making it much more difficult to pass legislation for the majority party, particularly over divisive issues such as health care and climate change.  It also sets up an extreme scenario where one party is completely out of power and yet is able to obstruct any potential legislation by the majority (assuming the Senate majority is not 60+).  The Republican party obstruction under President Obama leaned heavily on their ability to filibuster major Democratic legislation, with Obamacare only sneaking in because of a similarly arcane rule about budget reconciliation.

What might happen if it’s gone?

Well it already is for some things.  Again, because the Senate makes its own procedural rules, it can be ended at any time, and it can be ended for specific situations.  The Senate (with a Democratic majority) ended filibusters of judicial and executive nominees in 2013, with a Republican majority doing likewise for Supreme Court nominees in 2017. 

That said, the ending of the filibuster entirely would pave the way for the party in power to pass legislation that would otherwise stand no chance of passage.  There’s always been some lamenting from Democrats that they missed a potential chance to wield a 60-vote supermajority in 2009.  This time, they seem poised to overhaul the economy to address social inequality, continue to push social liberalism as the future, and finally finish the job on health care.  In particular, a large package of legislation such as the “Green New Deal” would be infinitely easier to pass without the filibuster. But both parties have traditionally been wary of ending the filibuster entirely, under the logic that all parties eventually cycle back into the minority, and neither party wants to be completely powerless to stop their opponents.

So expect to see a lot more talk about how a Democratic majority in the Senate and a Biden presidency would lead to the end of the filibuster.  It’s one of the few tools a party has to gin up turnout in a down cycle for the party, and no one knows the value of a good filibuster like Mitch McConnell.