Momentum is building to eliminate the U.S. Senate’s filibuster rule. The tactic, which dates back to the beginnings of the Senate, requires 60 votes to end debate on a bill and advance to a final vote, essentially meaning that most bills require more than a simple majority vote to pass.
Increasingly, however, the filibuster has become a tool used by the minority party to stall or block the legislative agenda of the majority party. For example, Senate Republicans used the filibuster several times in 2021 to block voting rights legislation.
That’s prompted increasingly serious discussion among leading Democrats — including President Joe Biden — about the viability of changing the filibuster rules. Biden, a Senate traditionalist who was previously resistant to the idea of eliminating the filibuster, has become increasingly vocal about eliminating the rule to get voting rights legislation passed.
“If the only thing standing between getting voting rights legislation passed and not getting passed is the filibuster, I support making the exception of voting rights for the filibuster,” Biden said during an ABC News interview in December 2021. Previously, Biden said he supported a plan to “fundamentally alter” the filibuster, such as bringing back the “talking filibuster,” which requires senators to talk continuously on the floor until a 60-vote majority ends debate.
Another option that has been proposed is a carve-out option that would require only 50 votes to pass a certain type of bill, like one dealing with voting rights. Democrats used this option to pass a one-time bill allowing them to raise the debt ceiling last fall. Changing Senate rules to enact either reform requires a simple majority but would require all Democrats to be on board.
The majority of Senate Democrats are currently in favor of changing or eliminating the filibuster. According to a 2021 Washington Post poll of Senate Democrats, 21 were in favor of eliminating the filibuster rule, 16 were committed to changing it and 11 were open to changing it. However, two moderate Democrats — Kyrsten Sinema from Arizona and Joe Manchin from West Virginia — are opposed to making changes to the filibuster rule, presenting a barrier to future action.
Manchin has voiced opposition to changing the filibuster because of its long history and its role in promoting a check on the majority party. “If you can make the Senate work better, the rules are something we’ve changed over the years; 232 years, there’s been rule changes. But there’s never been a change with the filibuster, the rights of the minority,” Manchin said during a Fox News interview.
Manchin’s concern for maintaining a fair legislative process has been echoed by other lawmakers. When he was a senator, former President Barack Obama voiced concern about the potential dangers of ending the filibuster, stating that it could “put an end to democratic debate, then the fighting and the bitterness and the gridlock will only become worse.”
However, Obama has recently spoken in favor of filibuster reform to advance voting rights. Opponents of ending or changing the filibuster rules are not only apprehensive about the consequences of changing procedural norms or the threat to fair debate. Some are also concerned that changing the rules could benefit Republicans if they become the majority party in 2022.
Sinema, for example, has voiced concern that a carve-out for voting rights legislation could pave the way for Republicans to use the same rule change to enact their own agenda should they take the Senate next year. Marc Thiessen, director of speechwriting under then-President George W. Bush, made a similar prediction in a January 2021 Washington Post op-ed in which he argued that Democrats would not only “rue” the decision to eliminate the filibuster when they return to the minority party but warned that changing the filibuster could “hasten that return by provoking a populist backlash that could sweep them out of power.”
Thiessen also pointed out that Democrats used the filibuster to rein in the Republican agenda under former President Donald Trump, thus demonstrating the value of the rule. Senate Majority Leader Chuck Schumer (D-N.Y.) wrote to Democratic colleagues in December that the Senate would not only consider voting rights legislation when it returned in January 2022, but it would also consider a change in the filibuster rules. “If Senate Republicans continue to abuse the filibuster and prevent the body from considering this bill, the Senate will then consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation,” Schumer wrote. Further debate on the filibuster as well as voting rights legislation is likely to continue into 2022.
For more background, see the January 2014 issue of Congressional Digest on “Changing Filibuster Rules.”
