The Filibuster: Democracy’s Roadblock to Achieving Real Legislative Progress
Most of President Biden’s bold agenda will live or die in the Senate. Image Source
“It’s time for boldness, for there is much to do,” Biden declared in his inaugural address, speaking to the American people for the first time as President of the United States. “This is certain, I promise you: We will be judged, you and I, by how we resolve these cascading crises of our era.”
“Cascading crises” is certainly an accurate description of the immense challenges Biden is facing as he starts his presidency. Inheriting a wrecked economy, a non-existent vaccine distribution plan, an ongoing climate crisis, a state of heightened racial and political tensions, and a nation where over 430 thousand citizens have died from COVID-19 and another 10.8 million are unemployed, is a daunting task for anyone. With the spotlight now directed at them, the Biden administration will be closely scrutinized for how they address each one of these issues.
In this vein, President Biden has repeatedly promised bold legislative action to help the American people. His proposed agenda includes legislation that would undeniably make a difference in people’s lives, with plans for healthcare reform, climate change action, immigration reform, and a $1.9 trillion rescue to combat the ongoing COVID-19 pandemic, all awaiting congressional approval.
While the Democrats’ wins in the Georgia runoffs ensure Democratic control of the House of Representatives, Senate, and the White House, the party’s leading margins in Congress could not be thinner. Whereas the Democratic majority in the House will most likely be able to pass many of President Biden’s bold proposals, most of his administration’s agenda will live or die on the Senate floor. Regardless of the new slim Democratic majority and Biden’s pleas for bipartisan cooperation, odds are Biden’s bold plans for action will die. And their cause of death? Killed by the Senate filibuster.
The History of the Filibuster
The filibuster is a Senate cloture rule which requires sixty members to end debate and move to a vote. In theory, the filibuster sounds like a valuable mechanism to ensure bipartisan support for a bill and foster agreement across the aisle in passing legislation; however, in practice, the filibuster has paralyzed the Senate for decades. Instead of being a procedural rule that allows for substantive debate on proposed legislation, it has most often acted solely as a gross obstruction tactic, a steep barrier to any incoming president’s agenda, and an embodiment of the worst partisan gridlock that characterizes Washington.
For as much importance it holds in modern-day lawmaking, however, the filibuster was never part of the Founders’ original vision of the Senate, nor does it ever appear written in the Constitution. In fact, the filibuster emerged essentially by accident: in 1806, Vice President Aaron Burr advised the Senate to revise their rule book to remove certain language he viewed as redundant. Among these changes was the removal of a provision that allowed a simple majority to force a vote on the underlying question being debated, like in the House of Representatives. Soon enough, Senators discovered that this provision’s erasure from the rule book made possible some grave unforeseen consequences: it gave even a tiny handful of senators the power to block a bill indefinitely and fashioned the Senate as the inefficient body we know it to be today.
Although the ability to filibuster dates back to the beginning of the 19th century, it took several decades until the minority in the Senate exploited the lax limits on debate to regularly obstruct legislation. During the post-Civil War period, Senators began to frequently utilize the mechanism to undermine the adoption of measures advancing the rights of Black Americans. In the Reconstruction and post-Reconstruction eras, Southern senators vehemently launched filibusters to kill all bills they viewed in opposition, including legislation on civil rights, the deployment of federal troops to Southern states, and the repayment of income taxes from the Civil War. As a result of this total obstruction—made possible only by the filibuster—civil rights largely faded from the congressional agenda between the 1890s and 1940s, and when the Senate infamously tried to pass anti-lynching legislation in 1922 and 1935, these efforts were again thwarted by the filibuster. Even the Civil Rights Act of 1964, the landmark law that finally broke the logjam on civil rights legislation in the U.S., was almost derailed on the Senate floor after a group of Southern senators launched a 54-day filibuster in opposition to it.
Though it emerged in the 1800s, the Senate filibuster gained popularity in the Reconstruction era as an obstruction tactic. Photo.
In reassessing the filibuster’s role in today’s political landscape, it is critical to see the filibuster for what it really is. Despite what is conventionally said in its defense, the filibuster was not deliberately designed by our Founders and emerged by a simple accident. We must recognize the filibusters’ history of repeated obstruction against civil rights legislation as a clear demonstration of how easily individual senators can wield their positions to defend horrendous status quo policies and prevent progress from ever advancing off the Senate floor. By giving so much power to this accidental bureaucratic rule and allowing it to stand in the way of necessary progress throughout our history, the Senate has failed the American people (and future generations of citizens) who entrust our government the duty to make a meaningful difference. Now, however, as they take the reins of our government leadership with a promise to “Build Back Better,” President Biden and the Democrats have a unique opportunity to make a change.
The Fight Over the Filibuster Today
Despite his party’s control of Congress and his promise to partake in bipartisan cooperation, the harsh reality is that much of President Biden’s agenda will die on the Senate floor at the hands of the filibuster. Republican senators have powerful incentives to deny President Biden the ten Republican votes he will need, in addition to all fifty Democrats, in order to end debate and pass most legislation in the Senate. With Republicans needing to take back just a handful of seats to regain majorities in both the House and Senate, blocking Biden’s agenda through the filibuster will make it easy for Republicans to make Democrats look feckless and ride voter discontent to gains in 2022.
Yet, at this pivotal moment in our nation’s history, when urgent action is needed to help the American people combat a pandemic, economic recession, climate change, and other urgent crises, the filibuster, and partisan gridlock cannot be the reason we are denied impactful legislation. In the face of Republican obstructionism, Democratic leaders must ask themselves a crucial question: do we keep the Senate filibuster to preserve the status quo, or finally get rid of this obstructionist plague to be able to actually help American citizens now?
Throughout the recent history of the Senate, the filibuster has been modified several times, indicating that there is precedent for changing procedural rule when there is a will to do so. In 1975, the Senate lowered the number of votes required for cloture from two-thirds, or sixty-seven votes, down to three-fifths, or sixty votes. In 2013, frustrated by what they considered relentless Republican obstruction to President Obama’s appointments, Senate Democrats led by Majority Leader Harry Reid (D-NV) led a successful push to reform the filibuster to allow the lower court and Cabinet nominees to be confirmed with a simple majority. In 2017, when the roles reversed, Senate Republicans led by Majority Leader Mitch McConnell (R-KY) successfully changed the rules again, this time to eliminate the filibuster on Supreme Court nominees in order to clear the pathway for controversial judicial picks by President Trump.
In analyzing the Senate as it is today, there is no rational argument for why 60 votes are needed to pass a law, but only 51 votes are needed to give someone the lifelong power to dictate what kind of laws Congress is allowed to pass. Given the shameful historical use of the filibuster, the changes the Senate has made to it in recent years, and how little the contemporary Senate truly accomplishes, Democrats have more reason than ever to unite as a caucus against the filibuster and pass the urgent legislation that the American people need. And because of his decades-long service in the Senate, President Biden knows how the Senate operates better than most, giving him unique credibility to lead a successful push for reform if he believes it is truly needed.
Having served as a U.S. Senator from Delaware for 36 years, President Biden has a unique credibility in the Senate to lead a successful push for reform. Photo.
Even if the Democrats make the right choice and decide to push for the elimination of the Senate filibuster once and for all, they will still face an uphill battle. While many senators have voiced favor for removing the filibuster, Democrats would require the support of every member of their caucus in order to change the rule. This includes several members, such as centrist Senator Joe Manchin (D-WV) and Senator Krysten Sinema (D-AZ), who have indicated opposition to challenging the status quo.
Expectedly, with talk of eliminating the filibuster spreading within the party caucus and garnering media attention, Democrats are now also facing heavy criticism and pushback from their Republican counterparts. As the 117th Senate commenced its duties this January, Minority Leader Mitch McConnell (R-KY) attempted to block the transfer of control of the chamber’s committees, ironically using the filibuster itself to paralyze any progress on the Senate floor until Democrats vowed to not get rid of the filibuster. Senate Majority Leader Chuck Schumer (D-NY) rejected the demands, holding on to the option of nixing the filibuster as political leverage, and thereby creating a standstill in the first week of the Biden administration. Although the impasse eventually ended, with Senator McConnell relenting on his demand, this most recent political clash is just another demonstration of the filibuster’s immobilizing partisan chokehold on Senate progress at a crucial time when we need Congress to work.
The Pathway Forward to Achieve Real Progress
The Senate’s paralysis-by-filibuster on important legislation has become normalized in the Washington playbook. Despite what its defenders may want the American people to believe, in today’s deep political divide, the filibuster has not and will not spur more bipartisan cooperation or agreements across the aisle. Instead, it will only continue to inflame partisans in the minority party who demand victory over their opponents—be it total or Pyrrhic—by blocking legislation to the detriment of the needs of American citizens. The gridlock is too often insurmountable.
As we strive to strengthen our democratic processes, repair a damaged economy, and attend to the critical health care needs of all Americans in a pandemic, we need a Congress that can properly function. Right now, with sixty votes required to achieve cloture and the ability of just one senator to hold up urgent legislation necessary for all of us, it cannot. The solution is to make the Senate work more like the House of Representatives, where only a simple majority is required for the passage of legislation, and where whatever party controls the majority decides what happens in the end. While this poses a powerful risk for Democrats, as Republicans will eventually gain more seats, regain control of the Senate, and undoubtedly launch an act of bitter partisan revenge someday, this cannot be the reason the filibuster remains unchallenged. In a democracy, elections have consequences, and whether one likes them or not, the results of our elections and the ideas they represent should be allowed to come to form in our government. That’s how an effective democracy works.
In this moment of crisis in our country, President Biden and Democrats must step up to meet the needs of the American people, and they must do so quickly. They can only accomplish this if they no longer prefer the false peace of decorum and status quo over the true progress of democracy. Adapting and modernizing a government is a necessary step in improving its performance for its constituents, and there will always be debate about when the time for change should happen. But if we are to face the immense challenges of our day that require our government to take action to help us, we cannot afford for the Senate to remain the place where good ideas go to die. The time is now.
Eliminate the filibuster, and America will see a far more functional federal government that can more effectively respond to the challenges of the present day. Keep it, and it’s most likely to deliver yet another four years of legislative paralysis our country cannot afford.
Nicolas Lama is a junior editor at CPR and a first-year in Columbia College studying Political Science, Economics, and East Asian Languages and Cultures.