Special Report: Is the Senate Filibuster a Safeguard or Threat to Democracy?

As consequential legislation such as voting rights, gun control, and abortion access has made its way to the Senate chamber, the obscure technique of the filibuster has been used more frequently to block passage of these bills. Is this legal procedure a failsafe for the political party in the minority or akin to obstruction for much-needed legislation. We turn to the Brennan Center for Justice and the Brookings Institution to help us understand the pros and cons of the filibuster.

According to the Brennan Center for Justice, a public policy institute at the New York University School of Law:

Traditionally, the Senate fili­buster was reserved for only the most contro­ver­sial issues, but its use has escal­ated in recent years, often slow­ing busi­ness in the cham­ber to a halt. In the Senate, a fili­buster is an attempt to delay or block a vote on a piece of legis­la­tion or a confirm­a­tion.

Once a bill gets to a vote on the Senate floor, it requires a simple major­ity of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actu­ally takes 60 votes to cut off debate, which is why a 60-vote super­ma­jor­ity is now considered the de facto minimum for passing legis­la­tion in the Senate.

Under original Senate rules, cutting off debate required a motion that passed with a simple major­ity. But in 1806, after Vice Pres­id­ent Aaron Burr argued that the rule was redund­ant, the Senate stopped using the motion. This change inad­vert­ently gave senat­ors the right to unlim­ited debate, mean­ing that they could indef­in­itely delay a bill without super­ma­jor­ity support from ever getting to a vote. This tactic is what we now know as a fili­buster.

In 1917, the Senate passed the cloture rule, which made it possible to break a fili­buster with a two-thirds major­ity. In 1975, the Senate reduced the require­ment to 60 votes, which has effect­ively become the minimum needed to pass a law.

There are, however, excep­tions to the fili­buster rule. Perhaps the most notable recent example pertains to pres­id­en­tial appoint­ments. In 2013, Demo­crats changed the Senate rules to enable the confirm­a­tion of exec­ut­ive branch posi­tions — includ­ing the cabinet — and of non–Su­preme Court judi­cial nomin­ees with a simple major­ity. Four years later, Senate Repub­lic­ans expan­ded the change to include Supreme Court appoint­ments. Both changes invoked what is known as the nuclear option, or an over­ride of a rule to over­come obstruc­tion by the minor­ity.

Now, anytime a group of 41 or more senat­ors simply threatens a fili­buster, the Senate major­ity leader can refuse to call a vote.

The Filibuster, Explained (Brennan Center for Justice)

According to the Brookings Institution, a Washington, DC think tank, the Senate cloture rule—which requires 60 members to end debate on most topics and move to a vote—could pose a steep barrier to any incoming president’s policy agenda. Voices on both sides have called for reform in the face of partisan gridlock, and while change may be possible now that Democrats control Congress and the White House, complicated dynamics in the Senate would make it an uphill battle.

The cloture rule has become far more common in the 21st century with more cloture motions filed in the last two decades than in the 80 years prior. The Senate has a number of options for curtailing the use of the filibuster, including setting a new precedent, changing the rule itself, or placing restrictions on its use.

What is the Senate filibuster, and what would it take to eliminate it? (Brookings Institution)

Up to this point, however, senators have not been willing to limit the use of the filibuster or eliminate it. The risk of what could happen is simply too great. Where this decision takes our democracy is still in question.

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