This is my third (and last, I promise) post about the filibuster. For the uninitiated, the filibuster is a Senate rule that requires 60 votes for “cloture” — a motion ending debate on a particular bill and allowing the Senate to proceed to an up-or-down vote on said bill — which de facto requires most legislation1 to secure 60 votes to pass the Senate without being blocked by the minority.
The filibuster has a sordid history, having been used in the 20th century primarily by segregationists to block civil rights bills (e.g., Strom Thurmond’s 24-hour filibuster of the 1957 Civil Rights Act). In recent years, it’s been used more and more, often allowing a minority of the Senate representing a minority of the country to block popular, commonsense, bipartisan legislation — look no further the failure of the Manchin-Toomey background checks bill in 2015, and the failure of a bill to create an independent commission to investigate the January 6th attack on the Capitol in 2021. Its very existence discourages even attempting kinds of compromises due to the difficulty of finding 10 votes from the other party (e.g., the death of Mitt Romney’s child tax credit proposal).
The bottom line is that the filibuster is bad. I highly recommend this Ezra Klein article that refutes pro-filibuster arguments line-by-line. But what are the options for reform?
Ideally, we would just toss the filibuster
The simplest (and in my opinion, best) option is to simply abolish the filibuster. This would mean that all Senate votes would only require a simple majority to pass — that’s 50 senators and the vice president, at a minimum — except for situations like an impeachment trial where the Constitution specifies a 2/3 threshold.
This would bring the United States in line with pretty much every other democracy and would make bipartisanship easier by lowering the threshold for aisle-crossing votes to a level that is actually achievable. It would prevent a minority of the Senate from vetoing bills supported by the majority. Better writers than me have made the case for it, so I’ll point you in the direction of this article by Matthew Yglesias and the aforementioned Klein article.
But President Biden seems lukewarm on scrapping the filibuster, and the votes just aren’t there to get it done via the nuclear option. But filibuster rules have been changed several times in the recent past.
So what are the other options in between abolishing the filibuster and the status quo?
The talking filibuster
This one’s pretty simple — you require senators to actually go onto the floor and talk to sustain a filibuster. Currently, a senator just has to refuse to give “unanimous consent” — meaning they simply have to object — to filibuster a bill.
A talking filibuster would force filibustering senators to walk the walk, but it’s not flawless. Recall that Strom Thurmond’s 1957 filibuster would’ve been allowed under this reform. There’s nothing to stop senators from pulling stunts like reading Green Eggs and Ham instead of actually debating the policy at hand, and any minority party with even halfway competent leadership could easily rotate through senators to hold the floor indefinitely and block a bill.
Flip the filibuster
Instead of putting the onus on the senators in favor of the bill to find 60 votes for cloture, you could require those against the bill to find 41 votes to sustain a filibuster. This would prevent a situation where the majority party has the votes to break a filibuster but a member is unable to vote for cloture due to, say, health reasons or travel complications. The problem is, again, that the minority party can still block bills from passing with just 41 votes as long as they make sure enough of their members vote against cloture.
Lowering the filibuster threshold
Maybe moderate senators are worried about moving toward a 50-vote Senate, wanting to avoid regularly passing legislation on such a partisan basis or to dodge tough votes. Fair enough. What about lowering the threshold for cloture to, say, 55 votes instead of 60? That would require more than one or two senators from the minority to pass bills while not setting the bar so high as to de facto block most bills.
The downside, again, is that you prevent the duly-elected majority party from passing bills with a simple majority, and the minority party has an incentive to obstruct the majority in order to paint them as incompetent in the next election.
The “ratcheting” filibuster
A different spin on lowering the filibuster threshold is former Sen. Tom Harkin’s (D-IA) proposal for a threshold that starts out at 60 and then slowly drops as debate continues over an eight-day period until it reaches 51.
The Harkin proposal allows senators who deeply oppose a bill to make their disapproval known and hold up the Senate for some time, but ultimately allows the majority to pass its bills and be judged on them by the voters. It also incentivizes good-faith compromise by the minority — if a bill is going to pass on party lines in eight days no matter what, you might as well try to get some amendments included in exchange for speeding up the process.
Make some more exceptions
Finally, you could just expand the categories of bills exempt from the filibuster, the same way that Mitch McConnell expanded the category of nominees not subject to a filibuster to include the Supreme Court in 2017. You could do a carveout for voting rights bills or bills granting statehood. This seems to be what’s been happening — the majority party creates new exemptions when the filibuster gets in their way and they have the votes. The most likely way the filibuster will die is death by a thousand cuts, as it is chipped away bit by bit and then all at once.
Above all, try something
My ideal solution would be to just do away with the filibuster altogether. But that’s not on the table right now. Of the alternative reform options, I like the Harkin ratcheting filibuster proposal best, as well as the voting rights exemptions. But at the end of the day, half a loaf is better than nothing, and any of these reforms would be an improvement over the status quo.
Over the years, certain carveouts have been made — Harry Reid used the “nuclear option” to lower the threshold for presidential nominations to 50 votes and the VP (except for SCOTUS) in 2013; Mitch McConnell used it in 2017 to eliminate the filibuster for Supreme Court nominees. There’s also the budget reconciliation process, which allows certain economic bills to pass with a simple majority.