What is the Filibuster?

The United States legislative branch is filled with archaic terms and procedures, but almost none of them are as powerful as the Senate’s filibuster. This procedure has existed for almost as long as the Senate itself, and according to the official Senate website’s glossary means: “Informal 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.” This delaying can take many different forms, such as a talking filibuster where Senators have to physically stand and speak against a bill in order to delay it, a silent filibuster which allows the Senate to vote on other matters during the filibuster, and also a demand for cloture which is a vote that 60 out of the 100 U.S. Senators must agree on to pass.

As President Joe Biden and the Democratic Party continue to make large legislative pushes such as the For the People Act, a major voting rights bill that would prevent state legislatures from making it more difficult for Americans to vote, they continue to be plagued by the filibuster, making many Democrats consider the idea of reforming the procedure or abolishing it wholesale. This would most certainly not be an easy task for Democrats and would represent a major change in the way laws are passed in this country. 

History of the Filibuster

To begin, the history of the filibuster can be traced back to September 22nd, 1789, when Pennsylvania Senator William Maclay described a tactic used by Virginia Senators to prevent a bill from passing by talking away the time. This process would become more popular during the 1800s, and midway through the century, the term filibuster would be created. The biggest problem with early filibusters was that Senators could theoretically continue them endlessly, as no procedure existed to end a filibuster by forcing a vote. Any attempt to change these rules would be met with another endless filibuster. 

Eventually, in 1917, the Senate created the cloture, a way to limit debate if a two-thirds majority could be met on an issue. This would somewhat alleviate the power of the filibuster, but not by much since a two-thirds vote was extremely difficult to obtain. Filibusters were one of the most powerful tools used by southern lawmakers to prevent civil rights and voting rights bills from being passed during the middle of the 20th century.

In 1975, the cloture rules were altered so that the majority had to become only 60 out of 100 Senators in order to limit debate. To this day, filibusters remain a very useful tactic that the minority party can employ to limit the power of the majority. However, in 2013, former Senate Majority Leader Harry Reid changed the rules on filibusters so that they could only be used in legislation, and not presidential nominations. This is one of the main reasons that former President Donald Trump was able to fill almost as many federal appellate courts during his single term as former President Barack Obama filled during both of his terms put together. 

How the Filibuster is used Today

The filibuster in its modern form is not fundamentally different from the way it was used in the past. One of the major differences is that the talking filibuster is very rarely used, and legislators much more frequently rely on silent filibusters so that other legislation can be debated while filibusters are in progress. The other most fundamental difference is that partisanship is extremely prominent in the modern era, and so it is extremely difficult to achieve cloture since nearly all lawmakers vote along party lines, with some notable exceptions, of course. 

With clotures nearly impossible in the modern Senate, and the ability to drag filibusters on for a seemingly endless amount of time available through silent filibusters, some Democrats are extremely eager to end the practice entirely, though many more moderate Democrats would prefer to simply reform the institution. For example, President Joe Biden has been noted as saying that he personally wants to bring back the talking filibuster as the primary method of delaying bills, as this type of filibuster can seemingly only last as long as the Senator can remain standing. There are disadvantages to the talking filibuster, however, since talking filibusters actively prevent all legislation from being discussed until the filibuster is over, while silent filibusters allow for other bills to be voted on.

Can the Democrats End/Reform the Filibuster?

At the current moment, Democrats do not have enough support in the Senate to reform the filibuster. Even with top Democrats like President Biden and Senator Dick Durbin of Illinois supporting reform, Democrats still need to garner the support of moderate legislatures such as Democratic Senator Joe Manchin of West Virginia, who notably did not vote with his party on the $15 minimum wage debate. With Democrats having such a narrow majority in the Senate, they need literally every Democrat to vote with the party if they want any hope of changing the filibuster procedure. It is very possible that as Republicans continue to prevent Democratic bills from passing, moderate Democrats may start to support the idea more and more, but only time will tell. 

How are Republicans Responding to this Potential Reform?

While nearly all Republican lawmakers oppose reforming the filibuster since it is one of their primary methods of balancing the Democrat’s power, one of the most outspoken Republicans has undoubtedly been Senate Minority Leader Mitch McConnell of Kentucky. Senator McConnell is well-known for his use of Senate procedures to advance the Republican agenda, such as preventing former President Barack Obama’s Supreme Court nominees and pushing the confirmation of Supreme Court Justice Amy Coney Barrett just a few days before the 2020 election to ensure a Republican majority on the Supreme Court. He stated on the Ruthless Podcast that eliminating the filibuster would effectively end all cooperation between Republicans and Democrats for the foreseeable future, as the Democrats would be stripping the Republicans of their most powerful tool. Some Democrats have responded to this by pointing how little cooperation is currently occurring regardless, considering the fact that President Biden’s COVID relief bill did not receive even one Republican vote. 

How might Democrats use the Reformed Filibuster to their Advantage?

The top priority of Democrats right now is to push their voting rights reform bill because, without it, they will face very difficult midterm elections as state-level Republicans make it more difficult for minorities and low-income Americans to vote across the nation. Democrats notably cannot use budget reconciliation, the tactic they used to force a vote on the COVID relief bill, on a voting reform bill, and therefore may face an endless filibuster from Republican Senators if they don’t make some sort of reforms to the procedure. With President Biden’s recent support of filibuster reform, and the Democrat’s extreme need to pass this voting rights bill, it is very possible that the end of the filibuster in its current form is on the horizon, as moderate Democrats continually face pressure from their party to support reforming the procedure.