The filibuster can be a useful delay tactic for the minority party, obstructing efforts by the Senate majority leader to advance new bills.
The victories of Jon Ossoff and Raphael Warnock in Georgia’s two Senate runoff elections earlier this month officially gave Democrats control of both chambers of Congress. It was a monumental pair of wins for the party and one that will give President-elect Joe Biden more leeway in passing his policy agenda.
While the Democrats certainly have much to celebrate going into the next presidential term, political reality will still constrain them. The next Senate will be split exactly evenly between 50 Republicans and 50 Democrats (the two independent senators caucus with the 48 Democrats).
With Vice President-elect Kamala Harris serving as the tiebreaking vote, Democrats technically have the majority in the Senate, but Republicans aren’t defenseless.
The main tool GOP senators will have at their disposal to disrupt the Biden agenda is the filibuster. The filibuster can be a useful delay tactic for the minority party, obstructing efforts by the Senate majority leader to advance new bills. Bypassing a filibuster requires 60 votes, meaning the Democrats will need the consensus of at least 10 Republican senators to pass legislation.
If Republicans do choose to obstruct Senate action, Democrats have one option that could streamline the process: abolishing the filibuster. It would be a drastic step, one that some Democrats have already indicated they oppose.
What is the filibuster?
The official Senate glossary defines the filibuster as a term for “any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”
The odd term originally comes from the Dutch word for “pirate” and has been in popular use in United States politics since the 1850s. While this form of “unlimited debate” was originally a means used in both Chambers of Congress, the House of Representatives, having grown too large, voted to put restraints on its use.
In 1917, the Senate limited the filibuster with what is known as “cloture”: two-thirds of the body could vote to end debate, allowing for the body to vote on legislation. A two-thirds majority was still a high bar to pass, so cloture rarely worked. In 1975, the Senate reduced the cloture majority to three-fifths, or 60 of the 100 total senators.
There are many famous (and infamous) examples of senators using the filibuster. The longest filibuster lasted 24 hours and 18 minutes and was carried out in 1957 by the segrationist Senator Strom Thurmond of South Carolina. Thurmond, who only took one bathroom break during the marathon session, was opposing the Civil Rights Act of 1957, which nonetheless passed.
In recent years, lengthy filibusters have twice been carried out by Republican Senator Rand Paul. The first time was a 13-hour stint in 2013 to block President Barack Obama’s nomination of John Brennan as Central Intelligence Agency (CIA) director. Rand was opposed to the Obama administration’s potential use of drones against US citizens. Brennan was confirmed nonetheless.
Two years later, Rand made a 10-and-a-half-hour stand against extending the Patriot Act, which was first enacted under President George W. Bush following the 9/11 terrorist attacks. Rand opposed the act in part because it allowed the government to collect the phone records of US citizens, though the House had previously voted to end that specific program.
The Patriot Act was not reauthorized, but a similar bill, the USA Freedom Act, was passed later that year. The latter bill officially ended the National Security Agency’s bulk collection of phone data.
In 2013, Republican Senator Ted Cruz gave a speech on the Senate floor for 21 hours and 19 minutes (occasionally broken up with short speeches by colleagues) to express opposition to the Affordable Care Act (ACA – popularly known as Obamacare). However, it did not stop the vote on a continuing resolution that, among other things, funded the ACA.
Cruz’s purely symbolic speech was notable both for its length and because of the viral moment in which he read the Dr. Suess children’s book “Green Eggs and Ham.”
How would the filibuster be abolished?
The filibuster isn’t a formal procedure, so there isn’t a way of voting it away. Instead, abolishing the filibuster would require changing the cloture rules and doing that would require a two-thirds vote of the Senate. That is highly unlikely to happen, especially with a 50/50 split.
Instead, Democrats could follow the example previously set by both Democrat and Republican-controlled Senates: deploying the so-called “nuclear option” (or “reforming by rule”).
This option allows a simple majority (say, 51 Democrats over 50 Republicans) to upend Senate precedent. It’s a convoluted process in which the Senate majority leader uses one Senate rule (Rule XX) to bypass the rule that requires a three-fifths majority for cloture (Rule XXII). Rule XX allows a vote on a “question of order” without debate, thereby eliminating the possibility of a filibuster.
This was deployed in 2013 under the Democrat-controlled Senate when then-Senate Majority Leader Harry Reid moved to change Senate rules so judicial and executive branch nominees could be approved by a simple majority. The rule change was approved 52 to 48. Democrats claimed it was necessary because Republicans were obstructing Obama’s nominations for purely political reasons.
Four years later, a Republican-controlled Senate turned the tables on the Democrats by using the nuclear option on the filibuster of Supreme Court Justices. The result of that change was that Democrats were unable to block then-President Donald Trump from placing three judges on the highest court in one term.
A similar but less dramatic action could merely ban the filibuster on a specific motion, a move that, again, requires only a simple majority to be approved.
Whatever moves the Democrats decide to take, though, will establish a precedent, one that will certainly be seized upon if and when Republicans take back the Senate later on down the line.
Do Democrats support abolishing the filibuster?
During the early months of the 2020 presidential election, when there were still dozens of potential candidates for the Democratic nomination, The Washington Post asked the candidates where they stood on abolishing the filibuster.
At the time, eight candidates, including Senator Elizabeth Warren and former mayor of South Bend, Indiana, Pete Buttigieg, said they supported abolishing the filibuster. Ten others, including Senators Kamala Harris and Bernie Sanders, said they were open to it. Meanwhile, the eventual nominee, Joe Biden, stated he opposed it.
In July, former President Barack Obama called on Democrats to eliminate the filibuster while giving a eulogy for the late Representative John Lewis.
With the Democrats controlling the Senate and the possibility of circumventing the filibuster now in reach, more Democrats may come around to the idea. Senator Chris Coons, who has been described as one of the “most vocal defenders of the filibuster,” indicated in 2020 he may be more receptive to its elimination.
The biggest obstacle would be Democratic Senator Joe Manchin, the West Virginia centrist who has frequently crossed the aisle to vote with Republicans. Manchin said in a Fox News interview in November, “I commit to you tonight, and I commit to all of your viewers and everyone else that’s watching … when they talk about whether it be packing the courts, or ending the filibuster, I will not vote to do that.”
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