Major investments in infrastructure and green jobs. Expansions to voting rights and reforms to the democratic process. Strong new protections for labor unions. Universal background checks on gun sales.
All of these are top priorities for Democrats in Congress, and this session the House has already passed bills on most of them. But none of those bills have much chance of becoming law, as long as Republicans control 50 seats in the Senate.
Unless Democrats roll back the filibuster.
An old procedural move, the filibuster was introduced to protect the interests of slaveholding states in the years just before the Civil War and for the next 100 years it was largely favored by Southern segregationists. In its current form, it allows a minority party to put the kibosh on bills that arrive without the support of 60 senators, and in the past dozen years, it has gone from being a rarely used tool to a core element of Senator Mitch McConnell’s strategy as the Republican minority leader.
To roll back the filibuster, Democrats would need a simple majority — effectively meaning that the caucus would have to be unified in support of reform.
“A large share of the priorities that are important for Democrats, and the country — starting with the democracy reforms — are not going to happen unless you can get 50 votes to change the rules,” Norman Ornstein, an emeritus fellow at the American Enterprise Institute who has long worked with senators to push for filibuster reform, said in an interview. “So it becomes a question of how you best get to the 50.”
The state of play
Among Democratic senators, Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona have been clearest about their opposition to ending the filibuster, though others also have yet to voice support for canceling it.
Given Manchin and Sinema’s reluctance, many opponents of the filibuster are now talking about moving away from it through a gradual process — perhaps by tacking back, ironically, to the way it originally worked in the antebellum and post-bellum eras.
“Retaining the legislative filibuster is not meant to impede the things we want to get done,” Sinema said in a statement, explaining why she opposes its elimination. “Rather, it’s meant to protect what the Senate was designed to be: a place where senators come together, find compromise and get things done for our country.”
But the history of the filibuster is complicated — and the image that many of us have in our heads, of an impassioned objection made on the Senate floor by a principled minority, simply doesn’t line up with the present reality. Nowadays, the sheer threat of a filibuster is all that’s needed to prevent a bill from moving forward, meaning that any measure that doesn’t have 60 votes won’t even be debated.
That’s largely thanks to a set of changes that passed in 1975, which lowered the number of votes needed to override a filibuster from two-thirds of those “present and voting” — so, 67 if all senators are on the floor — to three-fifths of the entire Senate. While this seemed to lower the number of “yes” votes needed to override a filibuster, it effectively shifted the burden from the minority party to the majority party.
Under the former present-and-voting standard, the minority party had to make sure that it always had enough senators on the floor to prevent a two-thirds vote from moving forward. But under the current standard, debate won’t even take place unless the majority party already has enough votes to override a filibuster.
Rather than putting an issue at the center of public debate, filibusters now serve to quietly sweep legislative items off the table.
“To the extent that the filibuster has a positive contribution, minority parties should have a chance to make their case and have some influence on the process,” said Adam Jentleson, the author of “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy” and a onetime aide to Senator Harry Reid, the former Democratic majority leader. “They just shouldn’t be allowed to block the bill from moving forward after they’ve had a reasonable amount of input,” he added.
Ornstein said that returning to a present-and-voting standard — whereby Republicans would most likely have to press their case against any bill they dislike during highly publicized, round-the-clock sessions — would “give the minority, with a lot of pain required, the opportunity to highlight why they’re opposed to something that the majority supports.”
He pointed to universal background checks for gun buyers — an idea that roughly nine in 10 Americans support, according to polls — as an example of an issue that could become difficult for Republicans to oppose in a public forum. Manchin himself has said that he could support some kinds of reform to make the act of filibustering “more painful” for Republicans.
As time wears on, competing forces will come into play. More obstruction from Republicans on a variety of issues could cause frustration to mount, leading Democrats who had opposed doing away with the filibuster to at least support weakening it. But as the midterm elections approach, some senators may become less willing to initiate a fight that reeks of partisanship.
“As you get closer to the midterms, people get more nervous about anything that might be seen as controversial,” Ornstein said.
A brief history
First introduced in the run-up to the Civil War by John Calhoun, a staunchly pro-slavery senator from South Carolina, the filibuster was heavily used during the Jim Crow era by segregationists who sought to prevent widely popular civil rights laws from being put in place. Nationwide polls from the 1930s through the 1950s showed that most Americans supported anti-lynching legislation, the abolition of poll taxes and other such laws — but Dixiecrat senators from the segregated South used the filibuster to stop legislation.
After the civil rights movement, pushback against the filibuster led to the reforms of 1975; in the years after that, it remained the primary domain of conservative Southern senators like James Allen and Jesse Helms, who were “considered outlaws, almost pariahs among their colleagues,” Jentleson said, calling them “absolutely the Ted Cruzes of their day.”
“If Republican leaders at the time could’ve had their way, they would’ve made these guys stop and cast them out of the party,” he said. “But it turns out that they were kind of the progenitors of where their party was headed.”
In his book, Jentleson writes that it may not be a coincidence that the G.O.P. leaned in to using the filibuster after the rise of Barack Obama, the nation’s first Black president. McConnell, who declared in 2010 that his main goal was to ensure Obama was “a one-term president,” started using the 60-vote threshold to stop almost all legislation from passing.
“Prior to McConnell, no leader had tried to deploy it against nearly everything that came before the Senate,” Jentleson said. “It turned out that Republicans were able to dodge blame easily — and that voters held the party in power accountable for failing to get anything done, and particularly held Obama accountable for failing to deliver on his promise to break the gridlock in Washington.”
The looming infrastructure debate
Looking at the present state of things, Jentleson described himself as “bullish on the prospect of reform,” citing “a fast-developing consensus behind the idea that reform is necessary.”
But as Democrats move into a wide-ranging debate over infrastructure legislation, Jentleson said, it is possible they will get bogged down. “The Covid bill had a deadline because there was the end of unemployment benefits,” he said, calling it a missed opportunity to force Republicans’ hand on the filibuster. (Democrats passed that bill with a simple 51-vote majority, using the process of budgetary reconciliation to avoid the 60-vote requirement.)
By contrast, Jentleson added, “It’s easy to see how the infrastructure effort drags on into the summer, and senators go home in August without having passed infrastructure, and not even getting to filibuster reform.”
Manchin recently said that he would insist the infrastructure bill be considered under regular order, and not passed through the reconciliation process. Perhaps ironically, Jentleson said, this could help to force a debate over filibuster reform.
“I’m going to be looking for if Democrats are sort of mindfully building a case that reform is necessary, and showing that the vast bulk of the priorities that we want to pass are not going to pass if the filibuster remains in place, and I think infrastructure’s going to be a telling example,” Jentleson said. “We should just view every issue through the lens of filibuster reform, because it’s the gateway to passing what we want to pass.”