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.