How to Save the World's Greatest Deliberative Body From Becoming a Graveyard: Reform the Filibuster

Written by
March 31, 2022

by Odette Overton, MPA '23 for Annotations Blog

Save democracy, or save the filibuster. This is the decision U.S. senators are facing amidst the over 250 voter suppression laws that have been introduced since 2020. In response to this threat to democracy, H.R. 1—The For the People Act (2021) proposes several reforms, including expanding voting access, limiting the influence of money in politics, and ending partisan gerrymandering. With the Democratic electorate growing faster than that of the Republican Party, legislation to increase voting access is largely seen to benefit left-leaning states, resulting in systemic efforts by the GOP to block these types of bills and maintain power. For example, a leaked recording involving an aide to former Senate Majority Leader Mitch McConnell (R) revealed that public support for H.R. 1 was so strong that conservatives should avoid publicly debating it, which is why Republicans—as the minority party—used the filibuster twice to block the bill. Now senators face the decision to save democracy by reforming filibuster rules and ensuring that every American has their voice heard, or preserving an obstructive tool, better known as the filibuster.

US Capitol Building

The Senate's Not-So-Secret Weapon: The Filibuster

Historically known as “The World’s Greatest Deliberative Body,” the United States Senate has recently been referred to as “America’s Most Structurally Racist Institution,” the “Judicial Approval Factory,” and—most commonly—a “Legislative Graveyard.” What lies at the root of these distasteful rebrands is a procedural tool that’s been informally in existence since the very first Senate session: the filibuster. With partisan posturing and petty politics on the rise, changes to Senate rules governing the use of the filibuster are necessary if democracy is to persist, as the alleged bastion of deliberation has lost its ability to deliberate.

Unique to the upper chamber of the Legislature, the filibuster is, in theory, a tactic used to delay action on legislation by providing an opportunity for unlimited floor debate until a threshold of 60 votes is met, known as cloture. But rather than provide a democratic forum for negotiation, the filibuster has become a weapon wielded by the minority party during partisan games to kill the majority party’s bills, hence the legislative graveyard. Notably, it has regularly been used to block critical civil rights protections, including anti-lynching laws, fair employment requirements, and federal protections for voting rights —despite wide public support for these measures. 

For example, in 1970, a small group of Southern senators used the filibuster to kill a Constitutional amendment (H.J. Res 681) that would abolish the Electoral College, an indirect voting system originally designed to give slaveholding Southern states a disproportionate amount of power. Despite a 338 to 70 vote in favor of the amendment in the House of Representatives and 80% support from the public, the amendment failed and the Electoral College still governs the way we elect presidents in the U.S. today. In fact, its existence explains how presidential candidates can lose the popular vote yet still become president, as Donald Trump did in 2016 despite Hillary Clinton receiving 2.9 million more votes.

Supporters tout the filibuster as a necessary tool that allows for proper debate and ensures bipartisanship by preventing the majority party from hastily pushing through legislation. However, the current practice allows staff to invoke a filibuster on behalf of their boss by simply sending an email announcing the senator’s objection to a bill, known as a hotline. This means that debate does not actually take place and hardly any, let alone hasty, legislation gets passed as more and more bills are refused consideration. For example, in the 1955-1956 legislative session, the Senate passed a whopping 2,410 bills; in 2019-2020, it didn’t even reach 300.

The Most Recent Casualty: H.R. 1

Consistent with American tradition, the filibuster was most recently used to block debate on H.R. 1—The For the People Act (2021), widely regarded as the most comprehensive election reform legislation since the Voting Rights Act of 1965. Under the current 50-50 party split in the Senate, Republicans have used the filibuster twice to block movement on H.R.1., ultimately refusing to even debate the merits of the bill. Although Democrats technically hold the majority with Vice President Kamala Harris (D) as the tie-breaking vote, they have been unable to pass H.R. 1 due to their inability to reach the necessary 60-vote threshold to end the Republican filibuster, essentially resulting in the death of the bill. Similar to H.J. Res 681, H.R. 1 garnered majority support in the House of Representatives and among the public but was defeated by minority party obstruction in the Senate. The United States was never intended to be a country of minority rule, yet here we are.

Senators are elected as representatives of the people and the people want to see meaningful change that will improve lives, not hollow promises that wind up dead on the Senate floor through procedural smoke and mirrors. 

Even as an increasing number of Americans express frustration with the Senate’s constant gridlock and suggest potentially eliminating the filibuster, Senators Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) have refused to consider this option as they believe the filibuster is the only way to preserve bipartisanship. Although an admirable goal, there is little bipartisanship to preserve at this point and the filibuster is simply being used for obstruction. Since the 1960s, parties have looked to draw sharp distinctions between themselves as party competition intensified and victories were won by increasingly narrow margins, resulting in minimal overlap between party interests. Recognizing this, the Senate created a 20–person bipartisan working group in 2021 with senators from both parties, including Manchin and Sinema, whose goal is to demonstrate that the Senate can function in a bipartisan way under the current supermajority requirements, despite years of gridlock. 

Unfortunately, the group has not been successful thus far, for example getting sidelined from the $1.9 trillion COVID relief package. Almost a year after its creation, the group was also unable to secure the 51 votes necessary for a Senate rule change that would have made an exception to the 60-vote threshold specifically for voting rights legislation. The rule change would have implemented a “talking filibuster” and allowed debate to end with a simple majority of 51; it failed 48-50 with Manchin and Sinema being the two holdouts. If democracy is to be saved and the Senate is to return to its original function—that is, to debate laws—there must be changes to the Senate rules, even if that means they are changed along party lines. Senators are elected as representatives of the people and the people want to see meaningful change that will improve lives, not hollow promises that wind up dead on the Senate floor through procedural smoke and mirrors. 

Providing Life Support via Changes to Senate Rules 

As cloture is not a Constitutional requirement and is merely a procedural rule (Senate Rule 22), the Senate can reform, or even eliminate, the filibuster in any way it sees fit as long as at least 51 senators vote to change the Senate rule. To save our democratic form of government, enhance bipartisanship, and re-engage in critical debate, the Senate should consider two changes to Senate rules, with the first being restoring the “talking filibuster.” When the filibuster was first established, senators were required to physically stand on the Senate floor to engage in debate and delay action on a bill, with the longest individual speech on record lasting 24 hours and 18 minutes. Clearly, this is an exception rather than the norm, but the requirement that a senator physically hold the floor for the entirety of the filibuster established guardrails that prevented its overuse. However, with the invocation of a filibuster now as easy as a click of a button, what once was intended to encourage negotiation is now rampantly abused and misused. 

The second recommended change to Senate rules is to shift the burden to the minority party by requiring them to sustain debate with at least 40 votes, rather than forcing the majority party to secure 60 votes to end a filibuster. In theory, several senators who have concerns with a piece of legislation would invoke a filibuster to provide time to negotiate amendments. But one single senator with concerns shouldn’t necessarily warrant movement on a bill to come to a screeching halt unless 60 of their colleagues explicitly agree to support the measure—again, the United States was not designed to be a country of minority rule. Rather, changes to Senate rules that would require at least 40 senators to explicitly express concern would provide another guardrail to protect against filibuster abuse as their opposition would have to go on record, a record which their constituents can hold them accountable to. 

Manchin has finally, after years of urging by other senators, agreed to consider changes to Senate rules that would make the Senate function more effectively. Although he hasn’t proposed an exact change that he would support, Manchin did say that he absolutely would not eliminate the filibuster nor reduce the threshold for cloture to a simple majority rather than three-fifths. Given these parameters, the two recommended changes are politically feasible as they would increase bipartisanship while also allowing critical legislation to pass, a win-win for America. Given all the past hardships our country has overcome, it would be a shame to let pride, self-preservation, and pettiness be our demise.

Odette Overton
Meet the Author: Odette Overton

Odette is a MPA '23 student at Princeton University's School of Public and International Affairs where she studies Domestic Policy. Her primary policy interests center on protecting voting rights, promoting good governance, and diversifying electoral politics to create a more inclusive and representative government. 

Prior to coming to SPIA, Odette worked in the California State Senate as a Legislative Aide to Senator Nancy Skinner where she primarily staffed policy and budget issues related to housing, data privacy, criminal justice, and cannabis. Notably, she was heavily involved in crafting the state's economic recovery package in response to the COVID-19 pandemic, including a $20 billion housing and homelessness budget bill. Before joining the Legislature, Odette spent several years as a Senior Research Associate at a national jury consulting firm where she conducted applied research on juror decision-making behavior. 

Odette is from Los Angeles, CA and holds undergraduate degrees in Kinesiology and Psychology from the University of Southern California.