The fate of the legislative filibuster has been at the center of recent debate as Democrats and Republicans' century-long tug-of-war on the rule is heating up.
Some Democrats have called to dismantle the filibuster in order to pass sweeping reforms on voting rights, immigration, and infrastructure — key issues at the center of the Biden administration’s legislative plan.
But Senate Republicans say filibuster reform would lead to “nuclear winter” in the chamber. Senate Minority Leader Mitch McConnell (R-KY) says abolishing the practice entirely would lead to a “scorched earth Senate” – turning the chamber into a “100-car pileup.”
Across the aisle, Senate Majority Leader Chuck Schumer (D-NY) has said all options are on the table to pass the bold agenda, and is looking to bypass the rule that effectively makes it so that instead of a simple 51 vote majority, 60 votes are needed to pass most bills.
Meanwhile, a chorus of Democratic voices, from progressive Rep. Alexandria Ocasio-Cortez (D-NY) to Sen. Elizabeth Warren (D-MA), are calling to rid the Senate of the filibuster, a viewpoint that has spilled from the Senate Chamber into the oval office.
Former President Barack Obama has called it a “Jim Crow relic” that should be eliminated to pass voting rights legislation.
“And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that's what we should do,” Obama said in a eulogy for voting rights advocate and civil rights icon John Lewis.
President Biden, while not committing to call for its removal, has been critical of its recent usage in the Senate, opting for a return to the more traditional “talking filibuster,” which would delay, but not halt legislation.
"I don't think you have to eliminate the filibuster," Biden told ABC News last month. "You have to do it what it used to be when I first got to the Senate, and that is that [with] a filibuster you had to stand up and command the floor. Once you stopped talking, you lost that and someone could move in and say, 'I move the question of.' So you’ve got to work for the filibuster."
Even former President Donald Trump had previously called for the filibuster’s removal – reportedly saying that Schumer would eliminate it as soon as Democrats took control of the chamber, according to Politico – though in recent days he’s changed his tune, saying in a recent podcast that such a removal would be “catastrophic for the Republican Party.”
Leader Schumer doesn’t appear to currently have the votes to remove the filibuster; Its fate may very well come down to if the Senate is able to pass Biden’s legislative agenda – a tall order with a 50-50 split Senate.
Despite appearing in countless headlines, the filibuster is still a mystery to some.
It’s been called everything from a way to require cooperation and deliberation in the United States Senate, to political theater, to an instrument of legislative obstruction.
And it’s the only congressional rule immortalized by Jimmy Stewart, playing freshman Senator Jefferson Smith, screaming “No sir, I will not yield!”
In essence, the filibuster allows for unlimited debate in the Senate – unless 60 senators, a supermajority, vote to end it – making it impossible for a bill to come to a vote.
Its origins date back to the early 1800’s and some say were incited by Vice President Aaron Burr’s call on the Senate to clean up their rule book. They eliminated a rule that would automatically cut off debate with a simple majority.
The only way to end debate is to introduce a motion called cloture, a rule that was added in 1917 that puts a time limit on further debate, and then brings the bill to a vote.
But cloture requires 60 votes, or three-fifths of the Senate. If the cloture fails, the bill just stalls, and never makes it to a floor vote. In practice, a filibuster means that instead of a 51 vote majority, you really need a 60 vote supermajority to pass a bill.
Historically, the filibuster was repeatedly wielded by southern senators to block civil rights measures. To date, the longest filibuster was held by Strom Thurmond in 1957 when the South Carolina senator attempted to block the Civil Rights Act. It lasted 24 hours and 18 minutes.
Today the mere threat of a filibuster is all that’s needed to hold up legislation.
“All you have to do to filibuster is essentially let it be known that you will not vote for cloture, Bloomberg News Opinions writer Jonathan Bernstein said. “It's just assumed that everybody is going to filibuster everything.”
According to the Brookings Institute measuring the amount of cloture motions is the best way to determine how often the filibuster is used.
Since the cloture rule was added there have been 2,312 motions made, 1,598 of those occurred in the past two decades, it’s a statistic President Biden echoed in his first press conference on March 25.
“Between 1917-1971, the filibuster existed, there were a total of 58 motions to break a filibuster.” Biden said. “Last year alone, there were five times as many. So it’s being abused in a gigantic way.”
In the 117th Congress, which began in 2021, there have already been 26 cloture motions filed.
While most legislation is subject to the filibuster there are some ways around it — like the budget reconciliation process, which allowed Biden’s $1.9 trillion COVID-19 relief bill to pass with a simple majority vote as a budgetary measure.
But reconciliation can only be used on very limited issues, and usually once in a fiscal year.
Currently, neither party has the political hand to eliminate or “nuke” the filibuster entirely. But in the last decade, there have been moves to chip away its use at the hands of both Republicans and Democrats.
In 2013, then-Majority Leader Harry Reid (D-NV) and the Democrats “nuked” the use of the filibuster to block federal judicial nominations to benches other than the Supreme Court.
In response, McConnell, then the Minority Leader, issued a stark, but prescient warning to the Democrats: “You’ll regret this, and you may regret this a lot sooner than you think.”
Just four years later, after Republicans took the Senate back and McConnell became Majority Leader, they utilized the so-called nuclear option to eliminate the filibuster on Supreme Court nominees, clearing the way for Trump’s nominee Neil Gorsuch to join the nation’s highest court.
Those supporting the filibuster argue any benefit to removing the fIlibuster would be short lived – and only for the party in power.
McConnell threatened that if Republicans take back the Senate, “we wouldn't just erase every liberal change that hurt the country – we'd strengthen America with all kinds of conservative policies with zero, zero input from the other side,” citing policies such as defunding Planned Parenthood and sanctuary cities, increase abortion restrictions, and concealed carry laws, among others.
Others argue that doing away with it may be the only way to pass any legislation.
“If we want to deliver on our promises, we have to be willing to get out there and fight for it, and that starts with getting rid of the filibuster,” said Sen. Elizabeth Warren (D-MA).
Moderate Democrat Sen. Joe Manchin (D-WV), echoing President Biden’s sentiment, has called for the return of the more “painful” talking filibuster.
For now, with the Senate evenly divided, it appears the filibuster is safe. But expect calls for its demise to continue. Like the filibuster itself, debate over its worth is a Washington tradition.