Could the filibuster, the infamous legislative gambit that has long frustrated lawmakers by making it easy to block legislation in the U.S. Senate, have a back-to-the-future moment?
The challenge: Most bills can’t pass with 51 votes in the 100-seat chamber. Minority party senators can prolong a debate indefinitely, and then deny permission to move forward on a bill. It then takes 60 votes to invoke “cloture,” as this process is known, to end debate and proceed to a vote. Inertia usually ensues.
A possible solution? Doing away with the 60-vote rule and resurrecting a rule that senators physically take to the floor and speak without breaks to oppose a bill, made famous in 1939’s Mr. Smith Goes to Washington, where an idealistic senator talks for 25 hours straight before collapsing from fatigue. The talking filibuster ended in the 1970s, but there’s talk of bringing it back.
Senate Democrats who passed one of the largest economic relief bills in history could replicate its success with other measures focused on the economy, which are exempt from the filibuster through a process known as “budget reconciliation.” But without changing a key procedural roadblock, they may have a harder time advancing voting rights, police reform and other social justice priorities, Northeastern faculty experts say.
Approval of the $2 trillion pandemic relief bill was possible only through the use of reconciliation, which allowed the legislation to clear the Senate by a simple majority vote. But reconciliation can be deployed only once every fiscal year, potentially jeopardizing the social equality issues that President Biden and fellow Democrats support, says Nick Beauchamp, assistant professor of political science.
Black voters and other constituencies that are heavily invested in social justice issues “may be frustrated if all they see is spending and taxes but nothing else,” he adds.
The potential friction could trigger intra-party squabbles over priorities when Democrats want to appear united against Republicans. Some are saying the time may be ripe for the talking filibuster.
“You had to stand up and command the floor, and you had to keep talking,” Biden said of his support for the change in a recent TV interview. “It’s getting to the point where democracy is having a hard time functioning.”
His position marked a shift for the former Delaware senator who spent nearly four decades in the chamber and is a longtime supporter of its norms and traditions, notes Dan Urman, who teaches constitutional law and the modern U.S. Supreme Court at Northeastern.
The presidential change-of-heart is likely triggered by “the popularity of the underlying policies he’s hoping to advance,” Urman says.
But senators, without saying a word, can simply raise their hands to object to a bill to force its supporters to produce 60 votes. Critics of the “silent filibuster” say one filibuster can eat up a week of the Senate’s time. Multiple filibusters consume the legislative calendar, making it impossible to address important business.
In 2016, for example, in the aftermath of a mass shooting in Orlando, Florida, Senator Chris Murphy, a Democrat from Connecticut, began an almost 15-hour filibuster about a funding bill. The filibuster was not about the bill, per se, but rather an effort to build support for stalled gun reform legislation in the Senate.
Similar bills were brought to the floor in 2013 following the Sandy Hook Elementary School shooting in Connecticut, but despite the Democratic majority at the time, all failed due in part to filibusters.
Capitol Hill lawmakers have instituted reforms in recent years. Democrats in the U.S. House of Representatives earlier this year changed a maneuver that allows the minority to offer last-minute changes to a bill. Known as the motion to recommit, the new procedure would only let the minority send a bill back to committee. Republicans protested the change.
“Once you have a majority, you can essentially put constraints on debate,” Northeastern’s Beauchamp says of the lower chamber.
Senate Democrats removed the 60-vote threshold in 2013 on most nominees for senior personnel posts and judges except those on the Supreme Court, allowing them to advance on a simple majority vote. But party leaders probably worked behind the scenes to lay the groundwork for a targeted reason—judicial vacancies in this instance—to get buy-in from fellow Democrats, faculty say.
Four years later, the Republican-controlled Senate included high court picks, allowing President Trump’s choices, Neil Gorsuch, and later Amy Coney Barrett, to win confirmation.
Not all Senate Democrats are on board with further changes. West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema have publicly spoken out against changing the rule and appear unmoved. But they could be swayed if there’s enough pressure, Urman points out.
“If the public puts a lot of pressure on them, they could change their opposition or at least support a talking filibuster,” he says.
Manchin once supported an effort in 2012 to revive the talking filibuster, Beauchamp says, but it never gained enough traction. And critics point out that once the talking filibuster ended, senators would still need 60 votes to end debate and proceed to a vote.
Senate Republican leader Mitch McConnell, who rebuffed calls by President Donald Trump to quash the 60-vote threshold, warned of a “nuclear winter” if Democrats pressed ahead.
“If they destroy the legislative filibuster, they will find a Senate that will not function,” the Kentucky lawmaker said in a March 23 podcast.
McConnell could gum up the legislative works with a series of delaying tactics, “but it’s unlikely to achieve anything in the long term or even in the short term,” says Northeastern’s Beauchamp.
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