With a slim majority in the Senate, Democrats have an opportunity to make President Joe Biden’s policy goals a reality, but they still need to garner at least some bipartisan support to get most bills through the Senate. To boost their likelihood of success, Senate Democrats may look to weaken one of the Republican’s last weapons, by reforming the filibuster or even eliminating it with regards to legislation.

History of the Filibuster

The right of unlimited debate, although controversial, has long been a hallmark of the U.S. Senate. While it can be prone to abuse, it also helps ensure that political minorities retain their voice.

The tactic of using long speeches to delay or derail action on legislation dates back to the earliest days of the Senate. The practice gradually became known as “filibustering” and now encompasses any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The record for the longest filibuster goes to U.S. Sen. Strom Thurmond of South Carolina, who held the Senate floor for 24 hours and 18 minutes, speaking out against the Civil Rights Act of 1957.

The first Senate rule designed to close debate and force a vote was enacted in 1917, at the urging of President Woodrow Wilson. It allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote.  The current cloture rule dates back to 1975. Under Senate Rule XXII, 16 Senators must initiate the cloture process by presenting a motion to end the debate. In most circumstances, the Senate does not vote on this cloture motion until the second day of the session after the motion is made. Then, it requires a vote of 60 senators to close debate. A two-thirds vote is needed to close debate on proposed amendments to the Senate Rules.

While once relatively rare, filibusters are now routine in the Senate. In 2009, there were a record sixty-seven filibusters in the first half of the 111th Congress — double the number of filibusters that occurred in the entire twenty-year period between 1950 and 1969. As highlighted by the Congressional Research Service, the prospect of a filibuster significantly impacts how the Senate conducts its business. When threatened with a filibuster, the majority leader may decide not to call legislation up for floor consideration or delay doing so in favor of pursuing more favorable bills. Additionally, a threatened filibuster can motivate a bill’s sponsors to agree to amendments that they oppose in order to avoid a filibuster.

Likelihood of Filibuster Reform

In recent years, both parties have reformed the filibuster rule to advance their interests. When Republicans blocked President Barack Obama’s executive and judicial branch nominees, Democrats changed the rules to establish a simple 51-vote threshold to confirm those roles. Under President Donald Trump, Republicans eliminated the filibuster for Supreme Court nominees.

Even with a Democratic majority in the Senate, eliminating the filibuster in the current Senate may be an uphill battle. Democrats would need all 50 Senators on board, and at least two moderates have voiced support for maintaining the filibuster. Republican minority leader Mitch McConnell has also warned of a “scorched earth” reaction if Democrats abolish the filibuster. "Everything that Democrat Senates did to Presidents Bush and Trump, everything the Republican Senate did to President Obama would be child's play compared to the disaster that Democrats would create for their own priorities if they break the Senate," he stated.

Filibuster reforms may, however, be a possibility. President Joe Biden has backed the idea of reinstating the "talking filibuster," which requires the senator holding up a bill to remain physically present and speak on the Senate floor. "I don't think that you have to eliminate the filibuster – you have to do it what it used to be when I first got to the Senate back in the old days. You had to stand up and command the floor, you had to keep talking," Biden stated in a recent ABC News interview. He recently stated that he may also be open to more substantive reforms.

Key Takeaway

The filibuster rules were established to keep legislation moving through the Senate. Whether reforming or removing them in the current political climate would improve the legislative process is certainly up for debate. We will continue to monitor developments in this area and provide updates as they become available.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Teddy Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.