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Analysis

Fixing the Senate Filibuster

Even if the filibuster cannot be abolished, there are ways to fix it that would clear a path for major democracy reform.

August 11, 2021

On June 22, Senate Repub­lic­ans used the fili­buster to block a vote on the For the People Act, the historic voting rights and demo­cracy reform bill. But major federal demo­cracy reform is very much alive. Indeed, in the face of an unpre­ced­en­ted assault on voting rights, the immin­ent threat of another cycle of extreme partisan gerry­man­der­ing, and the decade-long erosion of campaign finance rules, key lead­ers includ­ing Pres­id­ent Biden, Senate Major­ity Leader Charles Schu­mer, and Sen. Joe Manchin of West Virginia have all expressly recog­nized that inac­tion is simply not an option.

In real­ity, the June 22 vote was the first in what will almost certainly be a series of votes — another show­down happened in the early morn­ing hours of August 11 when the bill was sent out of commit­tee. And the fili­buster, even if it contin­ues, is not unal­ter­able. It should be possible to preserve delib­er­a­tion and debate without allow­ing a minor­ity to simply halt Senate action on vital legis­la­tion.

The fili­buster has in fact under­gone many modi­fic­a­tions over its history, which can be accom­plished via rules changes that require a simple major­ity vote. As in the past, there is a clear path for senat­ors anxious to preserve what they see as the main bene­fits of the fili­buster to do so while still moving forward with much needed legis­la­tion to secure voting rights, end extreme gerry­man­der­ing, and combat corrup­tion.

The fili­buster has never been set in stone

The fili­buster, which currently requires 60 votes to over­come, is a proced­ural mech­an­ism that a minor­ity of senat­ors can use to indef­in­itely delay the end of debate on legis­la­tion (known as cloture). It was not part of the framers’ original plan for the Senate, and in fact arose by acci­dent in 1805, when the Senate elim­in­ated its original rule for cutting off debate. The first fili­buster did not occur until 1837, and the maneuver was not used with any frequency until after the Civil War.

Crit­ics of the fili­buster have poin­ted to its funda­ment­ally anti­demo­cratic char­ac­ter and its use to block civil rights legis­la­tion — most infam­ously before and during the civil rights era, when south­ern segreg­a­tion­ists used it to block anti-lynch­ing legis­la­tion, anti-poll tax legis­la­tion, and to delay the Civil Rights Acts of 1957, 1960, and 1964. 

But since the 1970s, the fili­buster has become part of the normal prac­tice of the Senate. Now it is assumed that 60 votes are needed for most legis­la­tion. Its defend­ers argue that it protects the rights of the minor­ity and forces bipar­tisan delib­er­a­tion and comprom­ise, though there little to no evid­ence of the latter outcome — if anything, the fili­buster today is an imped­i­ment to comprom­ise.

The fili­buster itself has been changed numer­ous times. Between 1969 and 2014,  161 excep­tions to its super­ma­jor­ity require­ment were created. Senate major­it­ies from both parties have approved carve outs and other changes related to exec­ut­ive branch and judi­cial nomin­a­tions, budget recon­cili­ation meas­ures, and more. Even the 60-vote threshold has not always been a defin­ing feature of the fili­buster. In 1975, the Senate voted to lower the threshold from 67 votes to 60, as one response to the demand for reforms in the after­math of Water­gate. 

Another consequen­tial change in the mid-1970s was adop­tion of the “two-track” policy, which func­tion­ally elim­in­ated the “talk­ing fili­buster.” Before this rule change, senat­ors were required to hold the floor to execute a fili­buster, block­ing all Senate busi­ness until a cloture vote could be held. To better util­ize time, the new rule estab­lished the dual-track­ing system, allow­ing the Senate to work on multiple bills at once. Any bill being fili­bustered would move to a “back burner” until a cloture vote could be held, while the Senate focused on other bills instead. This change made it easier for a minor­ity to kill a bill by simply indic­at­ing a desire to fili­buster, thus block­ing it before it ever can reach the Senate floor.

In short, the fili­buster has always been subject to revi­sion. Even if there is not support for its full elim­in­a­tion now, there is ample preced­ent for further modi­fic­a­tions that would allow passage of the For the People Act or similar legis­la­tion. 

Options for modi­fy­ing the fili­buster today

There are a number of ways to further modify the fili­buster to mitig­ate its worst anti­demo­cratic char­ac­ter­ist­ics while preserving, and even enhan­cing, its delib­er­at­ive bene­fits. Below are some of the most discussed, although the list is not exhaust­ive.  

One appeal­ing change is to do away with the two-track model and return to the talk­ing fili­buster, as Pres­id­ent Biden and others have advoc­ated. Currently, the minor­ity merely needs to inform the major­ity of an intent to fili­buster a bill and the legis­la­tion is set to the side. Restor­ing the talk­ing fili­buster would require the minor­ity to be present and actively hold the Senate floor for the dura­tion of a fili­buster. 

This change would raise the stakes for deploy­ing a fili­buster and poten­tially create more incent­ive for bipar­tisan comprom­ise. For instance, senat­ors over­came a taking fili­buster at a crit­ical moment during the debate over the Civil Rights Act of 1964, when Demo­cratic Senate whip Hubert Humphrey worked with his Repub­lican colleague Ever­ett Dirk­sen to modify the bill to make it more appeal­ing to the Repub­lican minor­ity, most of whom subsequently voted for it.

A return to a talk­ing fili­buster should be paired with a change to the voting threshold required to invoke cloture. One approach is to insti­tute a “step-down” process like that origin­ally proposed by Sens. Tom Harkin and Joe Lieber­man in 1995 that would allow for success­ive votes gradu­ally redu­cing the number of senat­ors required to close debate until it reaches 51. In other words, oppon­ents would be able to slow down legis­la­tion backed by a major­ity, but the major­ity’s will would still ulti­mately prevail. 

The real­ity is that in today’s polar­ized, closely divided Senate, an unat­tain­able 60-vote threshold for major legis­la­tion does not incentiv­ize comprom­ise in most instances, because the minor­ity has no actual incent­ive to come to the bargain­ing table. A step-down process would create such an incent­ive while provid­ing extra time for delib­er­a­tion and comprom­ise. It would preserve the fili­buster while allow­ing a major­ity vote on time-consum­ing but vital legis­la­tion.

These are not the only possible reforms. Another change that has been sugges­ted is to shift the voting burden for cloture to the minor­ity that wants to prolong debate instead of the major­ity that wants to end it. Under current rules, it is the major­ity’s burden to invoke cloture, a lengthy process that requires all members voting in favor to be phys­ic­ally present. Like restor­ing the talk­ing fili­buster, flip­ping the voting burden to the minor­ity would raise the stakes for fili­bus­ter­ing legis­la­tion, incentiv­iz­ing senat­ors to do so less often and to be more open to comprom­ise. Another widely discussed option is to carve out a new limited excep­tion to the fili­buster for certain types of bills, such as those protect­ing voting rights or consti­tu­tional rights more gener­ally.

How to deal with the fili­buster in the context of the press­ing need to pass major federal voting rights and demo­cracy reform legis­la­tion does not present a binary choice. The fili­buster has been changed many times in response to press­ing national imper­at­ives, and it can be changed again without being fully elim­in­ated. That path should be pursued without delay.