As 2021 has drawn to a close, the Senate is at odds over monumental legislation. Tension among lawmakers has grown as the Democrat-led social spending bill, the Build Back Better plan, is at a standstill. A promise to pass a federal voting rights bill has yet to be fulfilled. Pressure from Americans is growing at a time when inflation is rising and a global pandemic ensues. With all the legislative dysfunction, President Biden and key Democrat players are considering drastic measures in order to pass bills.
The biggest blocker legislation faces in the Senate is the filibuster. The filibuster is a tactic that the minority party uses to prolong the debate of a bill and prevent it from passing. A bill can be passed with a simple majority vote of 51–50, but if a filibuster takes place, there must be 60 votes to end that debate and then move the bill to that simple majority vote. Essentially, with today’s use of the filibuster, any legislation needs a supermajority of 60 votes because that is what it will take to move the bill to the final vote. The filibuster was never written into the Constitution, which is why its rules and use have changed with time. While previous Senate majorities have changed the rules to benefit their cause, this term’s Democrats are under close watch as they are rumored to discuss new rule changes or even abolish the filibuster.
How would that work?
The Democrats have the opportunity to deploy the “nuclear option.” This is a parliamentary process in which the Senate majority can override a rule with a simple majority vote. It is a last-resort option for the majority to overcome any obstruction by the minority, like the filibuster. However, because it is a drastic measure to take, even accomplishing simple majority support is difficult. Two current Democrat Senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have expressed disapproval in overriding the filibuster rule.
This would not be the first time the nuclear option has been utilized. Both parties have taken advantage of it at one point or another, the first-ever use being in 2013 by Senate Democrats. It allowed for the party to appoint federal judges (not including the Supreme Court) with a simple majority, rather than the original supermajority.
What was the filibuster’s original intent?
In the first few years of the country’s democracy, legislation could be passed with a simple majority vote. If that was obtained, a bill could be voted on regardless of any call for debate. This rule was later scrapped and the ability for Senators to hold the floor for debate became possible. With that, the filibuster was born. However, it was not until the later 1900s that the filibuster was heavily deployed. In fact, the tactic was only used twice over the course of the 1800s.
The founding fathers called for this process in order to allow room for debate and prevent the majority party from being too powerful. It is argued that they did not intend for it to be used as a common political weapon.
How has it evolved?
Utilizing the filibuster grew with time. Slate research shows that between 1991 and 2008, a span of almost 20 years, Democrat minorities filibustered 63 times while Republicans filibustered 89 times. This number has grown exponentially in modern-day. Senate reports show that in only one year, 2019–2020, Senate Democrats performed a record-breaking 328 filibusters.
To put that into perspective, that’s more than a 4,000% increase in the use of filibusters over the course of 40 years.
The future of the filibuster
So what could change if the Democrats were to successfully change the rules of the filibuster? Senate Majority Leader Chuck Schumer, D-NY, has put an elections bill at the forefront for reasoning to change the filibuster. He released a letter to his colleagues explaining that if states are able to pass election laws with a simple majority vote, the U.S. Senate should be able to do the same. This eludes to the planned vote to eliminate the 60-vote filibuster hurdle when it is in regard to elections legislation.
Overriding any legislative rule can be a slippery slope. It sets a precedent that either side can use when they’re in the majority position, potentially giving the majority too much power. On the other hand, these rule changes can allow for less gridlock and more action among lawmakers.
With a united minority and a divided majority, Schumer is likely to fail in his attempt to change filibuster rules. However, he has said he will force the vote regardless, revealing to the public which Senators prioritize the voting rights bill, and which prioritize upholding Senate rules. Schumer set the symbolic date of January 17th, Martin Luther King Jr. Day, as the deadline to force the vote. However, citing the current pandemic circumstances and a potential winter storm in D.C., the vote has been pushed to Wednesday, the 19th.