With Democrats regaining control of the Senate — albeit barely — in 2020, there has been a lot of talk surrounding the elimination of the filibuster. This is not exactly a new debate, considering both Republicans and Democrats loosened filibuster rules as recently as 2017. However, some recent calls to completely eliminate it have left the public seeking information on what, specifically, the filibuster is, and what the consequences are of loosening its power once again. The Quaker Campus hopes to provide some clarity on the issues and history of the filibuster here in order to properly inform the student body on how this could impact politics and the power of the Senators representing us in Congress.
Contrary to popular belief, the filibuster was never written into the Constitution at all, and did not exist in any capacity in the first years of our country. As the Brookings Institution think tank explains in their article documenting the history of the filibuster, Senate and House rules were basically identical up until the 1800s.
Under the leadership of Aaron Burr, it was created, but did not originally have any intention of strengthening minority power. It was originally made out of a deletion of the rule dictating a majority vote due to a lack of its use, and most Senators’ willingness to go along with the Vice President. However, this did give any minority group of Senators the ability to prolong debate on any bill to prevent a vote. Still, the filibuster was not used at all until three decades later, in 1837.
In a separate Brookings article on what it would take to change filibuster rules and options for alternatives, researchers pointed out that filibusters were extremely uncommon for most of American history. They only gained real popularity as political parties became more partisan and adopted a more “team sport mentality” at the end of the 19th century, but began to increase exponentially in the past few decades.
Rules about the filibuster have also been changed numerous times in the past century. The ability for a cloture vote — an official vote on ending debate instead of allowing just one Senator to prolong debate infinitely — on filibustering a vote was not implemented until 1917 as a national security measure during WWI. Even then, it originally required a supermajority vote. It was not until the ‘70s that it was lowered to the current three-fifths, or 60 vote, standard. Restrictions on what could or could not be filibustered were implemented after that, almost always in response to partisan gridlock caused by a minority party attempting to obstruct the passage of legislation or confirmation of appointments. The most famous of these is the Byrd Rule, also known as budget reconciliation, which lets tax and budget legislation go through debate with a majority vote instead of a three-fifths one. This is the process Senator Bernie Sanders, now Chairman of the Senate Budget Committee, is calling for a more liberal use of in order to prevent Congressional obstruction.
It is also important to note, however, the deeply racist history of the filibuster. While not explicitly created out of the U.S.’s history of slavery and segregation, one of the booms of its popular use came during the passage of civil rights laws in the ‘50s and ‘60s. Since cloture still required a supermajority vote at the time, southern Senators banded together to repeatedly block the passage of voting rights and hate crime laws. In arguably the biggest instance of this, this prevented the passage of the law designating lynching as a hate crime until 2018. The filibuster was repeatedly used to deny rights from minorities, and some of the common usage of it today stems from this.
Now, on to the current debate over the deletion of the filibuster itself. As pointed out in the previously-mentioned Brookings article on possibilities for changing the filibuster, Democrats do not actually have the power to eliminate Senate Rule 22 — the rule that outlines the filibuster. Doing so would also require a three-fifths vote, and Republicans may not side with them in eliminating a power they currently yield. Instead, a simple majority could be used to end it by creating a new common law precedent. This would be achieved by a Senator officially claiming it is violating a Senate rule, followed by a vote that would establish a precedent to end that contradiction.
Considering the filibuster is a method of obstruction that can prevent the Senate from passing laws and doing its job, it would be relatively easy to argue against it. However, several Democrats have come out in support of the filibuster, including Sen. Joe Manchin of West Virginia, Sen. Krysten Sinema of Arizona, and Sen. Jon Tester of Montana. It is unclear whether this support of the filibuster is due to more centrist ideology or as a strategy to retain popularity in moderate and conservative states. However, considering changing a Senate rule in limiting the filibuster is not something most voters care about, and would have a negligible impact on their reelection chances in 2024.
Even as recently as 2019, Senator Booker of New Jersey and Senator Sanders of Vermont came out against ending the filibuster. This support of the filibuster makes some sense from the perspective of Democrats, as they were in the minority for most of the 2010s and frequently had to rely on the filibuster as well. However, the argument against the filibuster is that it is inherently undemocratic in allowing a minority party to have more power than the majority on the ability to vote on bills. This can come off as somewhat antithetical to a free society. In addition, some argue that Senators may also favor keeping the filibuster because it promotes and excuses Congressional inaction, making it easier to explain to constituents why they did not do something.
As for the outcome of changing the filibuster, it is not completely clear, considering it has already been around in the U.S. for most of modern history. It can be assumed, however, that, in general, amending the filibuster would lead to a quicker and more fluid passage of bills into law — similar to most European parliaments that have far fewer restrictions to the majority party creating new laws. There are also other alternatives to completely eliminating it, including limiting when and where Senators are permitted to filibuster, as well as expanding the power of the Byrd Rule, as Senator Sanders has proposed. These are all options that have a more realistic chance of passing through a majority vote while still making it easier for the Biden Administration and Congress to get work done. It still remains to be seen, however, if any of these changes will actually occur, or when they will actually be implemented. For that, we will have to continue to watch how the early days of the Biden Administration play out.
Featured image: Courtesy of Sage Amdahl/ Quaker Campus.