The Filibuster: Should It Stay Or Should It Go?

By Courtenay Turner

“Republicans said “no” to pushing the Senate over this precipice. When I could have tried to grab this power, I turned it down… I am grateful that’s been reciprocated by at least a pair of our colleagues across the aisle. I’m glad we’ve stepped back from this cliff. Taking that plunge would not be some progressive dream. It would be a nightmare. I guarantee it.”

WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) delivered the following remarks 1/26/21 on the Senate floor regarding the legislative filibuster.

Despite increasing support among Senate Democrats to end the filibuster, it’s clear they do not currently have the 50 votes necessary to do so. Senate majority leader Chuck Schumer has been signaling for years in reference to the filibuster, “Once we get the majority, we’ll discuss it in our caucus. Nothing’s off the table,” As an integral component of the senate’s tradition for centuries, the filibuster, arose from a history of limitless debate, that was traditionally used by the minority, to prolong, or halt a bill from passing. In 1837 the first successful filibuster was recorded, when group of Whig senators opposing President Andrew Jackson, filibustered to prevent Jackson’s allies from expunging a resolution of censure against him. 

What is a filibuster?

According to senate.gov, the filibuster is “a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question. Prior to 1917 the Senate rules did not provide for a way to end debate and force a vote on a measure. That year, the Senate adopted a rule to allow a two-thirds majority to end a filibuster, a procedure known as ‘cloture’. In 1975 the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.”

The senate’s existence is a part of the “complicated check, against improper acts of legislation” McConnell stressed, quoting James Madison. Via debate, deliberation and cooperation, it serves to counter the House of Representative’s majoritarian impulses, thereby preventing the “tyranny of the majority” our founders feared. “We ensure that laws earn enough buy-in to receive the lasting consent of the governed. We stop bad ideas, improve good ideas and keep laws from swinging wildly with every election.” McConnell said. He further asserted, if the filibuster was removed, there would be “immediate chaos, especially in this 50-50 Senate.”

While Schumer appears to be leading the way for elimination of the filibuster, he is not without support from many members of the Democrat party and their acolytes.  “I don’t want to hear, ‘Oh my, we don’t have 60 votes, woe is we,’” AFL-CIO President Richard Trumka told POLITICO last week. “Figure out a way to do It … There are several ways to get them done,” suggesting that ending the filibuster is one of them. Former President, Barack Obama preached that getting rid of the filibuster might be necessary to achieve the party’s agenda stating, “The filibuster won’t let Congress pass good laws.” One might ask how “good” those laws are, if they are too radical to garner compromise?

Despite the vigorous goading from many of the Democrats, imminent extinction of the filibuster is improbable. Two Democrat senators, and President Biden, have expressed opposition.  Jen Psaki assured, “the president’s preference is to not get rid of the filibuster. Look at what we’ve accomplished the past 6 weeks…He believes that with the current structure that he can work with Democrats and Republicans to get work and business done.” Senator Manchin, who has long expressed objection to abolishing the filibuster has now waivered in favor of “reform”. He asseverates, “The Senate is the most unique … governing body in the world, It’s deliberate. It’s basically designed … to make sure the minority has input.” He however suggests we, “make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can,” Manchin said. “But I’m not willing to take away the involvement of the minority.” Manchin appears to be suggesting we bring “Mr. Smith Goes to Washington” to life in DC. Sen. Kyrsten Sinema (D-Ariz.), the other moderate Democrat who has consistently supported the filibuster has envisaged a revisitation to the Senate requiring 60 votes always.

The three groups dividing the caucus, consist of those supporting changes (or axing the process entirely), those open to changes if Republicans attempt to obstruct legislation that has majority support, and those who haven’t expressed such openness. A recent review of comments on the filibuster illustrates that 19 Democrats (or independents who caucus with the Democrats) appear to fall into the “reform” category, 18 are open to making changes, and 13 oppose changes or haven’t taken a perceptible public position.

Below is an aggregate of the groups: 

  • Support changes
    • Sen. Tammy Baldwin (D-Wis.): “Recently, the threat of filibuster has been used far too often and as a result political obstructionism in the United States Senate is now worse than it has ever been. The people of Wisconsin and our state’s progressive tradition deserve better.” (2013)
    • Sen. Richard Blumenthal (D-Conn.): “I think we ought to end the filibuster, unquestionably. It is an obstacle to conquering the pandemic and reviving the economy, getting stuff done.” (January)
    • Sen. Sherrod Brown (D-Ohio): “We’ve got to eliminate the filibuster.” (October)
    • Sen. Ben Cardin (D-Md.): “The trade off is to make it easier to proceed to legislation versus guaranteed amendments and debate on the floor but preserving a broader consensus to move bills at the end. That would be significant.” (January)
    • Sen. Robert P. Casey Jr. (D-Pa.): “Yes, absolutely. And look, major changes to the filibuster for someone like me would not have been on the agenda, even a few years ago. But the senate does not work like it used to.” (March)
    • Sen. Martin Heinrich (D-N.M.): “The sort of filibuster usage we see makes it impossible to do some very basic things that the American people demanded of us.” (Last week)
    • Sen. Amy Klobuchar (D-Minn.): “I would get rid of the filibuster. I have favored filibuster reform for a long time and now especially for this critical election bill.” (Last week)
    • Sen. Ben Ray Luján (D-N.M.): “My constituents supported me knowing that I support filibuster reform. And so I’m going to come here and hope that that’s a tool that we can use.” (Last week)
    • Sen. Edward J. Markey (D-Mass.): “The filibuster must go. It’s something that’s rooted in a racist past, and it’s used today as a way of blocking the progressive agenda which President Biden is proposing — [including] environmental justice, racial justice, economic justice.” (February)
    • Sen. Jeff Merkley (D-Ore.): “We’ve got to work very hard to restore the ability of the Senate to work as a legislative body and take on the big issues facing America.” (January)
    • Sen. Chris Murphy (D-Conn.): “My hope is that we’ll be able to have a conversation about rules reform. I think we’re all interested in making sure Joe Biden’s agenda has a shot in the Senate. And let’s figure out ways that we can make sure that the minority doesn’t control the place every single day.” (January)
    • Sen. Alex Padilla (D-Calif.): “I’m in favor of abolishing the filibuster. There are a couple Democratic senators who have said they are not there yet. If we continue to see obstruction from our Republican colleagues as we saw through this covid relief package, I think the patience is going to wear thin, even on moderate Democrats. But we will see.” (Sunday)
    • Sen. Bernie Sanders (I-Vt.): “We must pass a comprehensive agenda to guarantee the rights and dignity of everyone in this country. And that means, among other things, reauthorizing and expanding the Voting Rights Act, for which Congressman John Lewis put his life on the line. As President Obama said, if that requires us to eliminate the filibuster, then that is what we must do.” (July)
    • Sen. Brian Schatz (D-Hawaii): “The filibuster was never in the constitution, originated mostly by accident, and has historically been used to block civil rights. No legislatures on earth have a supermajority requirement because that’s stupid and paralyzing. It’s time to trash the Jim Crow filibuster.” (February)
    • Sen. Jeanne Shaheen (D-N.H.): “I think we need to change the filibuster rule in the Senate. It’s an arcane process. I don’t think we should have every vote require 60 in order to get something done.” (2014)
    • Sen. Tina Smith (D-Minn.): “I’ve made up my mind. We need to move this country forward, and that’s why I’ve decided to come out in support of eliminating the filibuster.” (Last week)
    • Sen. Chris Van Hollen (D-Md.): “Americans should not be robbed of a living wage by archaic Senate rules and procedures — including the filibuster. We must increase the minimum wage, and I’ll keep pushing until we get it done.” (February)
    • Sen. Elizabeth Warren (D-Mass.): “We are willing to roll back the filibuster, go with the majority vote and do what needs to be done for the American people.” (February)
    • Sen. Ron Wyden (D-Ore.): “I am not going to let Mitch McConnell stonewall the ability to meet the urgent needs of the American people through procedural kinds of approaches that just tie the place in knots.” (January)
  •  
  • Open to changes
    • Sen. Michael F. Bennet (D-Colo.): “If people continue for their own political reasons to make it impossible for the majority to exercise its will, filibuster reform may have to be on the table.” (September)
    • Sen. Cory Booker (D-N.J.): “You have to understand that a lot of these that are talked about: If we do it when we have the control to do it, they can do it again. What we need to find is real solutions that are sustainable regardless of who is president. We should be careful about the traditions in this country and how we honor them.” (March 2019)
    • Sen. Christopher A. Coons (D-Del.): “I don’t think the first, second or third thing we do is have some debate about rules changes, because the president-elect was clear throughout his campaign he will try to work across the aisle and to bring the country together. And I expect that we will do that first and then see.” (January)
    • Sen. Catherine Cortez Masto (D-Nev.): “McConnell is determined to exploit the filibuster and fight progress on the most urgent crises facing our nation and if he wants to block action on health care, climate change, and voting rights, he should have to stand on the Senate floor and be transparent about his obstruction.” (This week)
    • Sen. Tammy Duckworth (D-Ill.): “I’m willing to work and compromise with my Republican colleagues. But at the end of the day, if they’re going to be obstructionist and not allow us to get those priorities that I listed out the door to help the American people, then everything is on the table as far as I’m concerned.” (February)
    • Sen. Richard J. Durbin (D-Ill.): “Unfortunately, we’ve reached that point. And if enough members in the Senate agree, we’ll change the rules.” (This month)
    • Sen. Kirsten E. Gillibrand (D-N.Y.): “I’m of the view that we should eliminate the filibuster despite all the risks. … [W]e can have a period of time to see if they’re willing to negotiate in good faith and willing to not hold common-sense things up and not have lots of party line votes. If that’s possible, then maybe we can govern with the filibuster, but if they start jamming us on basic things like covid relief, then that may change Sen. Schumer’s view.” (January)
    • Sen. John Hickenlooper (D-Colo.): “If push comes to shove, I have to look at everything.” (September)
    • Sen. Mazie Hirono (D-Hawaii): “There was a time when I did not support a filibuster change, because the filibuster is supposed to protect the voices of the minorities. We’re in the minority. I don’t think our voices are being protected, so I’m open to that discussion, but it won’t happen unless the Democrats take back the Senate.” (October)
    • Sen. Tim Kaine (D-Va.): “I’m very open to it. Look, I was governor of a state with two legislatures and everything is operated by simple majority. It works fine.” (June)
    • Sen. Angus S. King (I-Maine): “Right now, we don’t know whether it will be abused. If they’re going to use it to obstruct absolutely everything, then I’m prepared to change my mind.” (January)
    • Sen. Joe Manchin III (D-W.Va.): “The Senate is the most unique … governing body in the world. It’s deliberate. It’s basically designed, Chuck, to make sure the minority has input. That’s exactly our Founding Fathers. And now if you want to make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can. But I’m not willing to take away the involvement of the minority.” (Sunday)
    • Sen. Patty Murray (D-Wash.): “I’m not interested in watching Sen. McConnell or Senate Republicans keep us from acting if we have the chance.” (October)
    • Sen. Jon Ossoff (D-Ga.): Indicated openness in an interview. (September 2019)
    • Sen. Gary Peters (D-Mich.): Indicated openness in an interview. (August)
    • Sen. Charles E. Schumer (D-N.Y.): “We have a moral imperative to the people of America to get a whole lot done if we get the majority, which, God willing, we will, and keep it in the House, and Biden becomes president, and nothing is off the table. We will do what it takes to get this done.” (August)
    • Sen. Debbie Stabenow (D-Mich.): “There are really important things like voting rights that can’t be done through reconciliation.” (Last week)
    • Sen. Jon Tester (D-Mont.): “I think the filibuster’s very important, and I think it makes for better legislation, and I still believe that. I still support the filibuster, but, like I said, we’ll see what happens with the other side. Who knows what’s going to happen?” (September)
  • Skeptical of changes
    • Sen. Dianne Feinstein (D-Calif.): “I think the filibuster serves a purpose. It is not often used, it’s often less used now than when I first came, and I think it’s part of the Senate that differentiates itself.” (September)
    • Sen. Mark Kelly (D-Ariz.): “Bipartisanship is really important to me. I think it’s important to Arizonans, too. We just want to make the place work.” (January)
    • Sen. Patrick J. Leahy (D-Vt.): “What I hear over and over again from senators is not the question of the filibuster but: Why don’t we have votes on anything? I’d like to vote things up or vote them down.” (November 2019)
    • Sen. Jack Reed (D-R.I.): “The filibuster is not in the Constitution nor the original Senate rules, but we have a bicameral system for a reason and this legislative tool serves a critical purpose in ensuring the functioning of our democratic republic. Yes, it sometimes slows the process down, and some have abused or subverted it. But it remains an important part in our system of checks and balances.” (2017)
    • Sen. Jacky Rosen (D-Nev.): “I think we should keep the filibuster. It’s one of the few things that we have left in order to let all of the voices be heard here in the Senate.” (November 2019)
    • Sen. Kyrsten Sinema (D-Ariz.): “Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans. Therefore, I support the 60-vote threshold for all Senate actions. Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party.” (February)
    • Sen. Mark R. Warner (D-Va.): “I said during my rehiring process last year, I said it would take an awful, awful lot for me to end the filibuster. I don’t think that we ought to be coming in willy-nilly and changing the rules. … I would also expect my Republican colleagues not to come in with a single mantra the way they did under Obama, which is, ‘Let’s make this president unsuccessful.’ They want to work with Joe Biden. I think we ought to keep the rules.” (January)

Although imperiled, the odds skew towards some form of the filibuster remaining intact, for now. Since the filibuster serves as one of the most efficacious means of inhibiting “tyranny of the majority”, it’s vexing to the majority party. It behooves the majority, currently the Democrats, to acknowledge they may be in the minority in the future and desire a means of opposition, rather than discarding centuries of political tradition, and instead to direct their energies on designing legislation that’s appealing to a broad range of Americans. The challenge is always to maintain a system of checks and balances withing the government, because the government is comprised of humans; “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.” James Madison, Federalist #51, 1788

 

Sources:

  1. https://www.republicanleader.senate.gov/newsroom/remarks/mcconnell-on-preserving-the-legislative-filibuster-for-both-parties
  2. https://apnews.com/article/210b5d7948f943aa809276f868617a16 
  3. https://www.history.com/topics/us-government/history-of-the-filibuster
  4. https://www.mcconnell.senate.gov/public/index.cfm/pressreleases?ID=FDB61935-41E2-4C13-A50F-EF985725A281
  5. https://www.founderoftheday.com/founder-of-the-day/federalist-51
  6. https://www.foxnews.com/politics/mcconnell-warns-of-scorched-earth-post-nuclear-senate-promises-nightmare-if-dems-end-filibuster
  7. https://www.politico.com/news/2021/03/04/afl-cio-filibuster-stance-473676
  8. https://www.wsj.com/articles/obama-says-senate-may-need-to-end-filibuster-11596149160?mod=searchresults&page=1&pos=1
  9. https://dailycaller.com/2021/03/08/biden-doesnt-want-abolish-reform-filibuster-white-house/
  10. https://www.washingtonpost.com/politics/2021/03/08/calls-end-filibuster-have-bigger-problems-than-joe-manchin/
  11. https://www.politico.com/news/2021/02/12/kyrsten-sinema-democrats-468768
  12. https://www.washingtonpost.com/politics/2021/03/08/calls-end-filibuster-have-bigger-problems-than-joe-manchin/