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Democrats hold a legislative trifecta — majorities in both houses of Congress, plus the presidency — for the first time since the beginning of the Obama administration. In theory, a unified Democratic caucus should be able to pass whatever it wants and Republicans would be powerless to stop them.
But there’s one procedural tool that the GOP could use to prevent many of those plans from becoming law: the Senate filibuster. The filibuster allows any individual senator to block a bill from reaching a final up-or-down vote unless three-fifths of the Senate votes to move it forward, creating a de facto 60-vote threshold for legislation to pass.
There are significant exceptions. Senate rules allow for budget-focused legislation to be approved with a simple majority through a process called reconciliation. Some of President Biden’s proposals, including large portions of his coronavirus relief package, could become law through that method. But other major elements of the Democratic agenda — a new voting rights act, health care reform, environmental protections — are likely to be dead on arrival as long as the filibuster remains in place.
There’s nothing in the Constitution or federal law that requires the filibuster to exist. It’s merely a rule the Senate created for itself. As such, it can be amended or even eliminated by a majority vote. In 2013, Democrats removed the filibuster from confirmation votes for executive branch and lower court nominees as a way to circumvent GOP obstruction. A few years later, Mitch McConnell, the Senate majority leader at the time, expanded those exceptions to include Supreme Court confirmations.
Why there’s debate
Defenders of the filibuster say it helps maintain stability in the country. If it didn’t exist, federal law would swing wildly back and forth every time power changed hands in Washington, they argue. The 60-vote threshold is also believed to force the majority party to seek compromise that will satisfy at least a few members of the opposition, which prevents either side from forcing a radical agenda through Congress. Others say it would be a major tactical mistake for Democrats to get rid of the filibuster because Republicans would take advantage of its absence to reverse Biden’s policies the moment they took back the Senate majority.
Critics of the filibuster say it creates an artificial barrier to progress and undermines the core principles of democracy. As evidence, they point to the many times it was used by Southern senators to block civil rights legislation throughout the 20th century. Others argue that it’s naive to think that the modern Republican Party can be convinced to collaborate on ways to fix the many severe challenges the country is currently facing. If the filibuster remains in place, desperately needed (and widely popular) legislation to combat climate change, protect our elections and reduce economic inequality will never become law, many argue.
Others say there is room to reform the filibuster without completely eliminating it. Simple changes, like lowering the number of votes needed to break a filibuster or expanding the types of legislation that are exempt, would mean the filibuster would be used only in extraordinary situations.
While many prominent Democrats have called for the filibuster to be eliminated, there don’t appear to be enough votes among the party’s Senate caucus to do so at the moment. Biden has historically been resistant to the idea and appears to still hold that view, but he said during the campaign that he may reluctantly back filibuster repeal if Republicans remain committed to obstructing the entirety of his agenda.
The filibuster allows a minority of lawmakers to undermine the will of the people
“Right now, the filibuster prevents our entire federal government from passing common-sense solutions that have broad bipartisan support. … That is a problem in a country that is rapidly diversifying, and it creates a widening disconnect between the American people and the policy solutions that their government is able to pass, which is a fundamentally unhealthy dynamic for democracy.” — Author Adam Jentleson to Washingtonian
Killing the filibuster is the only way to defend American democracy
“This is the responsibility the Democratic majority must bear: If they fail or falter, they will open the door for Trumpism or something like it to return, and there is every reason to believe it will be far worse next time. To stop it, Democrats need to reimagine their role. They cannot merely defend the political system. They must rebuild it.” — Ezra Klein, New York Times
There is nothing sacred about the filibuster
“The filibuster didn’t come down from [Sinai]. It was not carved into stone. It was an invention. The filibuster was created. It was used for years to block civil rights legislation. And it recently has been used as a partisan tool to block everything. But the Senate rules have [been] changed many times over the years, including by McConnell. They can change again.” — Democratic consultant Eli Zupnick to the New Republic
Modern Republicans won’t compromise with Democrats on anything
“Perhaps, once upon a time, the filibuster helped broker across-the-aisle cooperation. (Perhaps, once upon a time, across-the-aisle cooperation was a viable position within the Republican Party.) That era is plainly over. A countermajoritarian legislative chamber might be useful if its members were distributed evenly along an ideological spectrum, but not when one party has transformed itself into a cult of super-reactionary zealots for whom compromise is tantamount to cowardice.” — Jay Willis, The Appeal
The filibuster's primary role in history has been to keep racist laws in place
“The persistence of the filibuster is one of the deeper political mysteries of the age. As a legislative tool, it has a profoundly dishonorable history. … The filibuster’s true pedigree is as an instrument of white supremacy.” — Timothy Noah, Washington Monthly
Amend the rules so the filibuster is used only in extraordinary situations
“But rather than scrap the filibuster entirely, the Democrats may want to instead consider reforming the procedure, so that it continues to exist for truly extraordinary circumstances, but ceases to be the easily deployed blockade it is today.” — Norm Ornstein, The Atlantic
Moderate Democrats will never vote to kill the filibuster, but may support amending it
“It’s time to get real about eliminating the filibuster. ... Even with pressure, these Senate centrists aren’t going to vote to ‘eliminate the filibuster.’ They might, however, be brought to a compromise.” — Michael Ettlinger, Vox
The filibuster forces lawmakers to seek compromise
“The more divergent our views become, the more imperative it is to build consensus rather than rely on political domination.” — David Harsanyi, Detroit News
The filibuster protects the minority of the country from the tyranny of the majority
“Eliminating the filibuster is far more than just changing some arcane procedural rule. … In practice, it is nothing short of an assault on the rights of the millions of Americans represented by the Senate minority — an assault that will have devastating consequences for our republic and our system of constitutional norms, including our most fundamental rights.” — John Cooper, Tribune News Service
Eliminating the filibuster will only make partisanship more severe
“The solution to gridlock, the cure for the abusive obstruction is not to embrace the expedient of one-party control. Eliminating the filibuster would not end gridlock. It would not reduce extreme partisan polarization. In fact, it would exacerbate it.” — Richard A. Arenberg, The Hill
Democrats could force through laws that make it impossible for the GOP to win elections
“Democrats now believe they could so fundamentally change the voting rules that they won’t even have to worry about Republicans getting back in power. … Moderates and conservatives should be very afraid of the radical changes coming.” — Joseph Olson and John Lott, Minneapolis Star Tribune
Killing the filibuster will backfire when the GOP takes back control of the Senate
“Once the 60-vote barrier for legislation is gone, it will be gone for both parties. And this could put policies cherished by Democrats in jeopardy down the road. But the new Democrats in Congress are men and women in a hurry, and they’ll worry about that later.” — Editorial, Wall Street Journal
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