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Is the filibuster slowing the progress of American democracy? Both President Donald Trump and Democratic presidential candidate Sen. Elizabeth Warren say it is. The former blames it for the GOP Senate’s failure to get rid of Obamacare, among other things. The latter believes it could hinder the passage of climate and gun control legislation if a Democrat wins the White House next year.
But the filibuster is a Senate tradition. It’s meant to protect minority rights. In essence, it subjects contested bills and nominations to a 60-vote Senate threshold. In theory it forces both sides to work together to find paths forward acceptable to all.
The problem is that in practice that’s no longer how things work. Today’s polarized politics make the filibuster a procedural wall. In recent years both sides have used procedural “nuclear options” to bypass it for judicial nominations. Is it only a matter of time before the whole thing topples?
“The filibuster could be a useful tool in a more open Senate,” says Mark Schmitt, director of policy reform at the Washington think tank New America. “It all works differently when everything’s following party lines.”
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.
President Donald Trump has placed himself squarely in Camp Scrap, urging Senate Republicans to get rid of the filibuster so that the GOP can muscle through legislation on controversial issues like immigration without needing bipartisan support.
Former Democratic Senate Majority Leader Harry Reid made a similar case earlier this month in a New York Times op-ed, 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.
A few days later, current Majority Leader Mitch McConnell, R-Ky., issued a rebuttal, defending the filibuster and accusing Democrats of wanting to run roughshod over Senate tradition in order to “inflict” a “laundry list of socialist policies” on Middle America.
The 2020 Democratic presidential contenders are also split on the issue. Some agree with former Senator Reid that it’s 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.
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’s a primer on the Senate’s favorite scapegoat, and the cases for and against it.
What’s a filibuster for?
First, what is 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.
One way of doing that is to physically stand on the Senate floor and speak – because 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’t go to a vote if any senator still wants to say something. Think “Mr. Smith Goes to Washington,” the 1939 film where Jimmy Stewart’s 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).
Today’s filibuster, though, is a lot less dramatic, most often coming by way of a clunky procedural mechanism called cloture.
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 – pressured to act against Germany toward the end of World War I – urged senators to create a way to close debate more quickly, and Rule 22 was born.
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 – typically 60 – 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 “filibustering” 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 – even if the bill or nomination itself would have had enough support to pass.
“You’re no longer requiring a senator to stand on the floor to keep talking,” says Mark Schmitt, director of policy reform at the Washington think tank New America. “It just becomes, ‘Do you have 60 votes?’”
The “nuclear option”
When people talk about abolishing the filibuster, what do they mean – and how would it happen?
The word “filibuster” 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 – typically 67 – in favor.
In recent years, senators who’ve wanted to change the rules haven’t been able to get that supermajority. Instead they’ve employed what’s called the “nuclear option.”
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 – effectively eliminating the filibuster for most presidential appointees. In 2017, Republicans under Majority Leader McConnell did the same to include Supreme Court nominees.
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?
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.
Except the filibuster doesn’t 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.
“The filibuster could be a useful tool in a more open Senate,” Mr. Schmitt says. “It all works differently when everything’s following party lines.”
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 – and some theorize that it’s incredibly difficult to roll back major social benefits once they’ve been passed.
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 – the argument goes – 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.
“More 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,” Jim Manley, a former top Democratic aide, tells The Atlantic. “There’s an inherent unfairness to the Senate that more and more people are focusing on.”
What’s the case for keeping the filibuster in place?
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 “necessary fence” against the “fickleness and passion” 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.
The cynical view is that the filibuster – or specifically, the supermajority requirement to end debate – 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’d like, or not take a position at all, without suffering blame or consequence.
“The filibuster has become a way to shift blame to someone else, to [either] an oppressive and draconian majority or a totally empowered minority,” says James Wallner, a senior fellow at the R Street Institute who’s written extensively about Senate procedure. “It’s a way to say, ‘I can’t do X. Therefore it’s OK for me to stop trying.’”
Besides, he says, getting rid of the filibuster wouldn’t 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 – 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 “filling the amendment tree,” and it’s an effective way of preventing senators from offering amendments to a bill that the leader doesn’t want debated.)
Using the nuclear option to get rid of the filibuster would only further destabilize the Senate and prove that senators don’t really care anymore about following the rules that govern the chamber, Mr. Wallner says.
Indeed, in his view, the biggest obstructions to Senate productivity are senators themselves. The Senate, he says, is built to produce legislation – as long as senators are willing to work through multiple failed votes, and understand that they won’t always be able to control or predict the outcome. But that’s not how senators approach the process anymore.
“They treat the Senate like it’s a factory that produces legislative widgets, and leaders think their job is to make sure the outcome is the widget they designed,” Mr. Wallner says. “They don’t want to put in the effort.”