What is the Senate Filibuster?
In the United States Senate, a bill can be debated among senators for as long they wish. For many types of bills, 60 out of 100 senators must vote to end deliberation in order to continue the legislative process. This voting practice is also referred to as cloture. If less than 60 senators vote to end debate and cloture is therefore not achieved, the bill is said to have been “filibustered” and is put aside while the Senate works on other bills.
As of now, the 100 senators are divided evenly among Democrats and Republicans, with Vice President Kamala Harris acting as a tie-breaking vote. However, 51 votes are not enough to pass cloture, and due to unprecedented levels of partisanship in the Senate, many Democratic bills face being filibustered and thus halted from becoming law.
History of the Filibuster
In popular culture, filibusters have been depicted as long speeches by senators in order to obstruct a bill’s legislation for as long as possible. This tactic, known as the “talking filibuster,” was first used in 1789, and for many, it is symbolic of the Senate’s right to limitless debate.
The process of cloture entered into common practice in 1806 when the Senate altered its rules to require more than just a simple majority when voting to end debate on a bill. Throughout the 1900s, two-thirds of senators, or the equivalent of 66 in today’s Senate, had to agree to end deliberation, but the rules were updated again in 1975 to require 60 votes.
Historically, the filibuster has been criticized for delaying important legislation. For example, during the civil rights era, Southern senators rallied against the implementation of anti-lynching laws. As a result, the Senate was unable to surmount the filibuster to pass civil rights legislation until 1964.
The filibuster remains a controversial legislative process. Those in favour believe it protects political minorities in the Senate from “the tyranny of the majority” and forces bipartisanship among parties. On the other hand, there is growing criticism that the filibuster is a tool of undemocratic “partisan obstruction” that prevents legislation in a politically divided Senate. This mounting frustration is reflected by the large increase in filibustered bills over the last half-century. In the 2019-2020 legislative session, there were 298 voting processes to invoke cloture, compared to just 6 in the 1969-1970 session.
Consequences for Policy-Making
Due to growing political polarization in America, the filibuster is now often weaponized by the political minority in the Senate to purposefully prevent the passing of legislation by the party in power.
For instance, many critics of the filibuster point to the Republican Party’s repeated blocking of Democratic bills that address issues such as voting rights, gun control, climate change, and immigration reform. In recent history, Republicans have filibustered twice the number of bills compared to Democrats in the Senate. As a result, despite being the political minority, Republican senators have undermined important legislation that the majority of Americans want, irrespective of their party affiliation. While some argue the filibuster forces parties to cooperate, it has instead “created paralysis where party loyalty has overtaken the greater good.”
However, others are concerned that doing away with the filibuster would increase the nature of back-and-forth policymaking. In theory, each new majority party could easily undo the previous administration’s legislation, as 51 votes to enact cloture does not require bipartisan support. As well, there is some concern that without a filibuster, a Republican-controlled Senate could implement “nightmare” policies, such as abortion rollbacks. During the Trump administration, Democrats utilized the filibuster to block some draconian immigration policies, the stripping of unemployment benefits, and more. As such, those in favour of the filibuster argue that it allows for an additional set of checks and balances before a piece of legislation is passed.
Those in favour of reforming, or entirely abolishing, the filibuster point to its modifications over the past century to avoid legislative dysfunction. Most recently, the judiciary branch experienced a reformation of the filibuster to only require a simple-majority vote to pass certain budget bills and confirm Supreme Court Judges.
However, the process of reforming the filibuster for regular legislative procedure is fairly complicated. Changing Senate rules requires two-thirds of members to agree, and because not all Democratic senators endorse changing the filibuster, the necessary level of support is difficult to reach. Another, more complex route could include establishing a new precedent regarding the application of Senate rules. For instance, a senator’s objection to a cloture process could result in a filibuster being overturned, thus setting a historical precedent for how future cloture rulings will be handled.
While both President Joe Biden and former President Barack Obama have expressed the desire to reform or abolish the filibuster, it remains a divided issue in the Senate. Although there are strong arguments for doing away with the filibuster in order to enact more progressive bills, there is currently no bipartisan support for its nullification, and thus it will likely continue to act as a legislative blockade for years to come.