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How NOT to Fix the Filibuster

While Democrats control the House, Senate, and the White House, their bold, progressive agenda is being hamstrung by the Senate 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. Historically used to uphold Jim Crow legislation, the filibuster is now being used by Republicans to stop widely-popular bills in their tracks, including democracy reform and climate change legislation.

In response, Democrats have explored various ways to reform the filibuster including changing the voting threshold, creating carve-outs, or resuming the use of the talking filibuster. While each of these options has merits, many of them do not go far enough to make the Senate a more functional governing body that effectively meets the needs of the people. The best pathway forward is the wholesale elimination of the filibuster. While there are other filibuster reforms on the table besides elimination, we cannot support any reform unless it allows the majority to move legislation to an up or down vote without potentially endless delays. Keep reading for more information on why some of these filibuster reforms will only continue to entrench us in our broken system.

For more information on why the filibuster is anti-democratic, read our filibuster explainer.

Filibuster Reforms and their Shortcomings

While some Senators have expressed a willingness to reform the filibuster instead of eliminating it, these reforms would continue to reduce the effectiveness of the Senate and obstruct Senate business from proceeding.

  • Reinstituting the “talking filibuster”

One of the more popular reforms on the table, reinstituting the talking filibuster, would require Senators to actually hold the floor and speak to delay legislation. If the filibustering Senators could not continue, the filibuster could be ended with a simple majority vote. Some Republicans like Senator Lindsey Graham have already said they would continue to use a talking filibuster to obstruct crucial reforms like H.R. 1, saying he would talk until he “fell over.” While this would make holding a filibuster more difficult, it would also completely grind all Senate business to a halt -- a disastrous proposition when we face a democratic crisis.

  • Creating filibuster exemptions

At different points, the Senate has done away with the filibuster in specific cases. Former Senate Majority Leader Harry Reid eliminated the filibuster for votes on lower-court judicial nominations back in 2013, and most recently, Mitch McConnell eliminated the filibuster for Supreme Court nominations in 2017. There has been discussion about eliminating the filibuster for voting rights and democracy issues, and while we think that’s a step in the right direction, we’d still face filibuster obstruction for all our other priority issues, like climate change and healthcare. The wholesale elimination of the filibuster is the best way to guarantee movement on ALL our priorities.

  • Require 41 votes to continue debate.

This reform would flip the onus of the filibuster from the majority to the minority. Instead of requiring 60 Senators to end a filibuster, it would require 41 Senators to continue the filibuster. While this would force Senators in the minority to reckon with the pains and obstruction of the filibuster, the margins in the Senate are too slim to guarantee this would act differently in practice than the current filibuster.

  • Reducing the votes needed for cloture

Under this scenario, Senators could vote to lower the filibuster threshold from 60 votes to a lower number. Additionally, they could create a system that lowers the number of votes needed for cloture according to a certain schedule, “ratcheting” down the number of votes until it was just a simple majority vote. While this reform would allow us to pass legislation with smaller margins, or even a simple majority, it would still cause delays and obstruction in the Senate. The simplest solution is still to eliminate the filibuster.

  • Restore the “present and voting” standard

The Senate could restore the “present and voting” standard to 67 Senators from the current 60 Senators. The change would force Senators from both parties to stay by the floor or risk lowering the threshold to stop a filibuster. While this would make it more difficult for the minority to sustain the filibuster, it does not eliminate the threat of disruption.

But what if Republicans win back the Senate -- won’t they retaliate?

The hard truth is that Republicans have already retaliated and will find new ways to shred our democracy in the future, whether we get rid of the filibuster now or not. We need to take this chance while we have it, eliminate the filibuster, and pass substantial democracy reforms during this Congress. If we don’t, Democrats could lose the Senate for the next decade or even longer, despite getting millions more votes and representing millions more Americans than their Republican counterparts. Republicans have already undermined so many of our democratic institutions to tilt the playing field in their favor, including passing voter suppression bills throughout state legislatures and packing the courts to block progressive legislation. We only have one chance to get this right -- we cannot let the filibuster stand in the way.