1. How did the filibuster come to be?
The Senate, envisioned by the founders to be a highly deliberative body, was created with no mechanism to end debate on a given topic. Senators quickly realized that long speeches could delay action on legislation they didn’t like. In the 1850s, the practice of talking a bill to death got a name -- filibuster, from the Dutch word for “pirate.” In 1917, senators adopted a rule establishing that debate could be ended upon a so-called cloture vote supported by a two-thirds supermajority. That bar was lowered in 1975 to a three-fifths supermajority, meaning it takes 60 votes in the 100-seat Senate to end debate.
2. What’s happening now?
Since taking power in January 2021, Senate Democrats have faced pressure to end or modify the filibuster from their more liberal members, the more progressive wing of the House and outside activist groups. Even some moderate Democrats, including Minnesota’s Amy Klobuchar and Tina Smith, signed on to the idea when all 50 Republicans lined up against Biden’s $1.9 trillion pandemic relief and stimulus plan. But to alter the rules, all 50 Democrats in the chamber would have to vote in favor, with Vice President Kamala Harris breaking the resulting tie. At least two centrist Democrats -- Joe Manchin of West Virginia and Kyrsten Sinema of Arizona -- have said they won’t go along. Sinema says the filibuster, and the 60-vote supermajority it enforces, protects the country “from wild reversals on federal policy” when control of Congress changes hands. Manchin says Senate rule by simple majority would “pour fuel onto the fire of political whiplash and dysfunction that is tearing this nation apart.”
3. Are there alternatives to ending the filibuster?
Yes. Manchin says the filibuster should be made more “painful” to use by requiring senators who invoke it to speak continuously. Or a simple majority of senators could vote at any given time to modify the filibuster, just as they could to end it. In fact, senators have limited its use twice in the past decade, both times in regard to confirmations of presidential appointments. In 2013, Democrats established that a simple majority vote could advance nominees for lower-court judgeships and federal agencies. In 2017, the Republicans who then held the majority voted to allow a simple majority vote to confirm Supreme Court nominees. For now, most legislation can still be filibustered.
4. What is Biden’s position?
He hoped that reluctant Senate Democrats, including Manchin and Sinema, would support relaxing the filibuster rule to permit passage of one Democratic priority, a bill on voting rights. But after Sinema expressed her opposition to the idea, Biden acknowledged, “I don’t know if we can get this done.”
5. Doesn’t a filibuster already last only as long as a senator keeps talking?
That’s a myth that can be traced to “Mr. Smith Goes to Washington,” the 1939 film in which Jimmy Stewart’s character filibusters to heroic effect. In reality, the filibuster has often been deployed to frustrate majority rule, or simply to rally supporters, as when Senator Strom Thurmond of South Carolina stood on the floor for 24 hours and 18 minutes in 1957 in an unsuccessful bid to stop a civil rights bill. Under the idea floated by Biden, Manchin and others, filibusters would more closely resemble “Mr. Smith” -- the vote would be delayed only so long as a bill’s opponents actively held the floor.
6. Can any bills make it around the filibuster?
Yes, but not many and it’s not easy. In 1974, the Senate adopted a procedure known as reconciliation that allows for expedited consideration of legislation related to spending, taxing and the federal debt limit. Under reconciliation, a simple majority is all that’s required for passage. But the process has limits: The Byrd rule -- named for Robert Byrd, a Democratic senator who represented West Virginia for 51 years -- requires that all provisions in a reconciliation bill have an impact on federal revenue, spending and deficits, and that no extraneous provisions are included. That forced Democrats to drop Biden’s proposal for a national $15 an hour minimum wage from the virus-relief package. Republicans used reconciliation to pass tax cuts in 2001, 2003 and 2017, and the Affordable Care Act, also known as Obamacare, achieved final passage only by using reconciliation. Democrats fear that priorities like measures on voting rights or immigration would not qualify for reconciliation.
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