The filibuster is a political procedure used by the minority party in the Parliament or Congress to delay or block legislation. It prevents a bill from being voted on until both parties have come together to extensively debate the proposed law. In American politics specifically, it refers to the procedure when at least 41 senators out of 100 obstruct legislation in the Senate by extending a debate over an issue. This means that the bill is denied the required 60 votes and cannot be voted on until the debate persists. This is based on constitutional foundations: “…each House may determine the Rules of its Proceedings…” and so it does. However, the filibuster as such is not explicitly addressed by the US Constitution. Even though some of the Founding Fathers, like Alexander Hamilton, clearly favoured a majority rule, the Constitution itself left space for the lawmakers to determine their rules of procedure.
The filibuster is derived from a cloture rule passed in 1917. This rule required two-thirds of the Senate to agree on a bill and put it to the vote on the Senate floor. In 1975, this rule was adjusted to require three-fifths, a supermajority, of the Senate votes. In numbers, that translates to 60 Senate votes necessary to avoid a manoeuvre like a filibuster. In most cases, to gain the Senate’s approval, only a simple majority – 51 votes – would suffice. However, to cut off a debate over a piece of legislation, a supermajority is needed. This threshold has been considered unnecessarily high; in most countries, a supermajority is required only for the amendment of the constitution and not for an ordinary legislative process. The only exception to it is reconciliation – a procedure that enables budgetary and spending bills to pass the Senate without being blocked by a filibuster. After all, both the Democrats and the Republicans hold 50 votes in the Senate, with the Vice President only able to break a tie, meaning that most legislation is unavoidably subject to a filibuster. The question arises whether this procedure helps to foster cooperation or hampers democracy instead.
Proponents of the filibuster, including Senate Minority Leader Mitch McConnell, argue that it is one of few procedures that incentivises compromise between the minority and majority. Nonetheless, this claim is debatable for several reasons. The argument might have been a valid one back in the days when the two parties had an ideological overlap. But with further polarisation, this is no longer the case. Moreover, in recent years, the balance of power in the Senate oscillates between the two sides, while during the period between 1933 and 1979, Republicans could only gain control for four years. This implies that during such a period of Democratic control, the filibuster did offer an opportunity for bipartisanship. However, recently the filibuster is more likely to be used by the minority as a tool to hinder the majority’s progress, so they have more chance to regain control in the next election cycle. That is why the modern filibuster has been criticised for hindering compromise and impeding the effective legislative process. Barack Obama has famously referred to it as a “Jim Crow relic”, and he had a point. The reference was used with regards to the common practice of segregationist senators who obstructed most civil rights bills in the mid-20th century. Nevertheless, this practice broke off when liberals managed to pass the Civil Rights Act and the Voting Rights Act in the 1960s. That also meant that filibustering was no longer associated with segregation laws only but became used to obstruct all types of legislation.
Moreover, through time, filibustering became easier as senators were no longer required to stand on the Senate floor and speak for hours on end as before. An effortless call would be enough to start a filibuster. So, while the cloture rule has initially been used only occasionally and primarily for civil rights bills, the number of filibusters has spiked up dramatically in recent times (see chart).
Ironically, the most frequent reliance on the filibuster was depicted by the Democrats during the Trump administration, who are now considering scrapping it entirely. While one might find this attitude contradictory, Democrats also fear that popular legislative pieces will not “make it through” as Republicans will obstruct them. This clearly shows how the filibuster tends to become the favoured tool of the minority. Yet, its complete abolishment would require a simple majority vote, meaning all the 50 Democrats voting in favour, together with a vote from the Vice President, Kamala Harris. However, for now, at least two Democrats strongly oppose the idea of getting rid of the filibuster. But while the debate continues over its abolishment, one thing remains certain – American democracy is worn out. On the Freedom House’s list of democracy ratings, the United States scores 83 out of 100, which indicates a decrease from 2010 when it received a score of 94. The Pew Research Center’s reports also depict that trust in the federal government has decreased significantly compared to the Reagan era’s trust score. Only 20% of the US adult population trust the federal government always or most of the time.
One way to strengthen American democracy might be precisely through the reform of the filibuster, as it often acts as a procedural wall that prevents effective legislation. Various means could be employed. For one, the cloture threshold of a supermajority (60 votes) could be gradually lowered to 57, 54 or 51 votes as the debate continues over a bill. This means that the longer the debate lasts, the fewer votes would be needed to end the debate over the proposed legislation, so finally, it could come up for a vote. Other ideas include requiring the minority to provide 41 votes not only to start a filibuster but also when they want to go on with a debate instead of having the majority find 60 votes to end a filibuster. The reintroduction of the hour-long speeches that senators had to give on the Senate floor back in the days when they objected to a bill would be another alternative. This would render filibustering a more effortful procedure where senators would be required to actually hold the floor and voice their arguments in front of the whole Senate.
While the filibuster is a great tool that can encourage compromise between the majority and minority, it should be ensured that it is not being used for arbitrary means. Some strengthened requirements, as mentioned above, might help the realisation of the filibuster’s real purpose as a bipartisanship tool instead of a barricade to effective legislation.