Eliminating the Filibuster

Donald Trump may be out of office, but our work is just beginning. Democrats control both chambers of Congress and the White House, but to pass progressive legislation, including democracy reforms, universal health care, climate change legislation, and immigration reforms, we need to abolish the filibuster. As the Senate’s rules exist today, Republicans in the Senate will still have the power to block every single progressive priority using a procedural tool called the filibuster, which requires at a minimum 60 votes to advance legislation.

It's simple: none of the progressive issues that Democratic candidates and congressional leaders are discussing today will become law unless we do something about the filibuster. If Mitch McConnell expects to be the Grim Reaper of progressive policies, the scythe he’ll use is the Senate filibuster. Unless we change the rules.

The filibuster — a procedural wall in the Senate

It has a funny name, but the filibuster is a simple procedural mechanism that allows the minority party to block legislation from advancing in the Senate. The filibuster is the ability to keep debate open on a legislative item until the Senate votes to close it. Closing debate requires 60 votes, instead of the usual 50, and if you don’t have 60 votes, you can’t move to final voting. The practical result – in an era when both sides are playing legislative hardball – is that you need to either get 60 votes or bypass the filibuster to accomplish anything. (Not coincidentally, you don’t need 60 votes for the things that Republicans want, like tax cuts — just the things that Democrats want. More on that below.)

The filibuster is inherently undemocratic, and not required under the Constitution. For most of the Senate’s 230-year history, legislation was passed with simple majorities. Even after the filibuster was created in the early 1800s, its use was rare. That changed in the second half of the 20th century when the filibuster was increasingly used by both parties to block legislation. However, while both parties have used the filibuster, it has been weaponized to a greater extent than ever before by Republicans in order to kill landmark pieces of legislation, from civil rights to gun violence prevention and beyond.

An important thing to remember is that the filibuster is not required by the Constitution. In fact, the Founding Fathers were well aware of the dangers of minority rule and purposely designed the Senate to be majoritarian — i.e., they envisioned the need for only a simple majority to conduct Senate business. As Rob Goodman and Jimmi Soni wrote in the Atlantic in 2011:

There's a reason, after all, that there's no filibuster written into the Constitution. Our Founders were deeply read in classical history, and they had good reason to fear the consequences of a legislature addicted to minority rule. As Alexander Hamilton wrote in The Federalist No. 22, "If a pertinacious minority can control the opinion of a majority...[the government's] situation must always savor of weakness, sometimes border upon anarchy."

The filibuster is undemocratic: it empowers the minority to block the will of voters and of the American public, and it will be used by Republicans to block every single progressive priority, even in the best-case scenario where Democrats control of the House, Senate, and White House. Here are just a few examples of how the filibuster has been used to stop the will of voters:

• The filibuster was used for years to block landmark civil rights legislation. Southern Democrats used it to kill anti-lynching legislation numerous times over the course of the 20th century — in fact, because of this obstruction the Senate didn’t pass an anti-lynching bill for the first time until 2018. Sen. Strom Thurmond (R-SC) holds the record for the longest speaking filibuster in Senate history in opposition to the 1957 Civil Rights Act (he spoke nearly uninterrupted for 24 hours and 18 minutes); and collectively, opponents of civil rights legislation filibustered the 1964 Civil Rights Act for 60 working days, the longest combined filibuster in history. While both of these bills passed eventually passed, the filibuster was used effectively for several years by Republicans to deny civil rights protections for millions of African Americans and other minorities.

• The filibuster continues to be used to block gun violence legislation. In 2013, Senators Manchin (D-WV) and Pat Toomey (R-PA) introduced legislation requiring background checks for private gun purchases, a modest reform with massive popular support. The bill died in the Senate, despite garnering the support of 54 Senators (including members of both parties). This bill is a great example of the lesson we need to learn about the filibuster going forward: even bipartisan bills, however popular they may be, will be blocked by a small number of Republican senators if the filibuster remains in place.

• The Dream Act would have passed in 2010 if not for the filibuster. Today, Dreamers and their families continue to fight for their lives under Trump. But the truth is that most of them would be safe today if not for the filibuster. In 2010, Congress and the White House were all controlled by Democrats, so when the House passed the Dream Act and sent it over to the Senate, Dreamers hoped that they would soon obtain permanent relief from deportation. Instead, the Dream Act was blocked because, with a vote of 55-41, it didn’t get the necessary 60 votes to advance.

As long as the filibuster remains in place, Mitch McConnell (or his successor) will use it to block democracy reforms, climate change legislation, the Dream Act, Medicare for All, debt-free college, equal pay, gun violence prevention legislation, an increase to the minimum wage, universal pre-k, and any other progressive priority you can name.

There’s nothing sacred about the filibuster — it’s been amended repeatedly. The filibuster we have today is actually much weaker than the original filibuster. Over the course of the last 100 or so years, the filibuster has been repeatedly weakened to avoid total gridlock and dysfunction. Part of the reason reforming the filibuster is such a no-brainer is that the filibuster has been reformed a ton already. We’ll highlight a few reforms here:

• In 1917, the Senate instituted a means for officially cutting off debate through a supermajority vote. Before this, there was no means of stopping a filibuster at all. With this change, cutting off debate now required two-thirds of all senators (usually 67).

• In 1974, the Senate eliminated the filibuster for budget bills meeting certain requirements (a legislative process called “reconciliation”).

• In 1975, the Senate lowered the thresholds for ending a filibuster to 60 Senators.

• In 2013, the Senate eliminated the filibuster entirely for federal executive branch appointees and judicial appointments, other than the Supreme Court.

• In 2017, the Senate eliminated the filibuster for Supreme Court nominees.

Every one of these reforms weakened the filibuster. It’s on its last legs now, but it still has the potential to kill progressive legislation — that’s why it’s got to go.

The filibuster makes the country ungovernable, according to Barack Obama. Reforming the filibuster is not a radical idea held by fringe leftists. In 2018, Barack Obama argued that the filibuster has got to go. Reflecting on his own presidency, Obama said, “Adding the filibuster … has made it almost impossible for us to effectively govern at a time when you have at least one party that is not willing to compromise on issues.” In 2020, Obama again called to eliminate the filibuster, calling it a “Jim Crow relic.” Obama is far from alone. A host of liberals, centrists, and even one or two conservatives have noted the incredible political dysfunction fostered by the filibuster.

Eliminating the filibuster is simple. All it takes to eliminate the filibuster is a simple majority vote in the Senate — and this can be done at any time. Senate Democrats can introduce a big package of democracy reforms, like DC statehood and expanding voting rights. Mitch McConnell, the self-proclaimed “grim reaper” of progressive legislation, then initiates a filibuster. Democrats can then hold a vote, and with just 50 votes eliminate the filibuster and prevent McConnell from vetoing the legislation.

This is a sample scenario of how it would work:

1. The Democratically-controlled House of Representatives passes and sends to the Senate H.R.1, a landmark pro-democracy bill that puts political power back in the hands of the American public.

2. The Democratically-controlled Senate attempts to pass H.R. 1 and send it to the Democratic President for signature. But because Democrats don’t have 60 votes in the Senate, their efforts are blocked by Mitch McConnell who has vowed to kill all progressive legislation.

3. Democrats face a choice: either accept congressional gridlock where none of their priorities get done, or do away with the filibuster in order to pass their priorities with a simple majority.

4. Senate Democrats choose democracy and try again to pass H.R.1, but this time vote to eliminate the filibuster to prevent McConnell from blocking it. H.R.1 passes with a simple majority and send it to the Democratic President for signature.

5. McConnell calls it an undemocratic power grab, but Democracy is saved and Democrats can move on to other priorities, like health care and climate legislation.

6. We get to win on other priorities, like health care and climate legislation. 

Then why hasn’t Mitch McConnell done away with the filibuster? The truth is that he already has, for the things he cares about. There used to be a 60-vote threshold to confirm Supreme Court justices, which Mitch McConnell eliminated in order to seat conservative justices Neil Gorsuch and Brett Kavanaugh onto the court. McConnell’s priority while leading Republicans in the Senate has been to reshape the judiciary branch by installing conservative federal judges, which he has systematically done using only a simple majority.

The only reason why Mitch McConnell — known for being ruthless about advancing his priorities — hasn’t already eliminated the filibuster for legislation is because he simply doesn’t need to. There is a loophole in the Senate called budget reconciliation that allows the majority to advance legislation with only a simple majority for legislation that directly impacts government spending or taxes may be included. That may sound like a serious limitation, but in reality Republicans can use it for far-reaching changes like the ones they proposed in their ACA repeal bills or in the Tax Scam. Democrats, on the other hand, probably couldn’t use reconciliation for things like Medicare for All or the Green New Deal because those would require non-budgetary policy changes.

In short, Mitch McConnell has changed the rules to advance his priorities and Democrats need to do the same to advance theirs.

How do we get from here to there (saving our democracy)?

Doing what is necessary is often hard, especially when dealing with risk-averse Members of Congress who often think it’s better to keep the status quo rather than take bold action. In order to get this done, it’ll take consistent pressure from constituents, from voters, and from the broader public. Constituents need to demand it from their Democratic Senators; voters need to demand it from presidential and Senate candidates, and get them to commit to eliminating it; and the public and civil society organizations need to call for it. We have a once-in-a-lifetime opportunity to enact bold structural reform on every issue we care about. We can’t let the filibuster get in our way.