Filibuster reforms are normal, and they happen all the time.
The Senate filibuster is one of the most unfortunate accidents in American history.
In 1805, fresh off the duel where he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the body’s rules by eliminating something called the “previous question motion,” a process that was rarely invoked in the early years of the Senate.
As Sarah Binder, a Brookings Institution expert on Congress and a professor at George Washington University, explained in 2010 testimony to the Senate Rules Committee, Burr’s intent was to produce a “cleaner rule book” that wasn’t too thick with duplicative procedures. And he thought the previous question motion was the kind of superfluous rule that could be eliminated.
Unfortunately for the nation, the previous question motion wasn’t the least bit superfluous. This motion turned out to be the only way to force the Senate to move off a particular topic. When the Senate took up Burr on his call, it allowed senators to lock the Senate into endless, pointless debate — halting progress even if a majority of the Senate wished to move forward to a vote.
The filibuster was born.
Since then, the rules permitting filibusters have been changed many times — and with increasing frequency.
In 1917, President Woodrow Wilson successfully urged the Senate to create a process, known as “cloture,” which would allow a two-thirds majority of the Senate to break a filibuster and bring a matter to the Senate for a final vote. The number of votes necessary to end a filibuster, whether on a piece of legislation or on a confirmation vote, was reduced to three-fifths of the Senate (ordinarily 60 votes ) in 1975.
In the 1970s, Congress created a process known as “budget reconciliation,” which allows many taxing and spending bills to become law with a simple majority vote, bypassing the filibuster. In 1996, Congress enacted the Congressional Review Act, which allows Congress to overturn recent federal agency regulations without having to deal with the filibuster.
And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.
Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.
Filibuster reforms, in other words, are quite normal.
Congress took its first steps to curtail the filibuster more than a century ago, and the modern Senate has frequently placed limits on the filibuster. If the current Senate were to make additional changes to the rules governing the filibuster, that would be very much in line with the Senate’s recent practice.
Democratic senators like Joe Manchin (WV) and Kyrsten Sinema (AZ), who say they oppose eliminating the filibuster, do not need to eliminate it in order to build a more functional Senate.
Before I get into several ways the filibuster can be altered without abolishing it, however, it’s helpful to understand some of the procedural details behind the filibuster.
How filibusters work
Setting aside exceptions to the filibuster rule such as the reconciliation process, which can only be used infrequently and has its own set of gratuitously complex rules, there are normally two ways to bring a matter to the Senate floor for a vote.
The first is unanimous consent, a process that is used quite often for noncontroversial matters or for matters where both parties have already negotiated an agreement. If every single senator agrees to hold a vote, then the vote can be scheduled right away.
If just one senator objects, however, the Senate may not hold a final vote on a matter unless cloture is invoked.
Which brings us to the second way to bring a vote to the Senate floor. Cloture is a lengthy process. To invoke cloture, the majority must first present a petition, signed by at least 16 senators, which seeks to end debate on a matter. Then senators have to wait. According to the Congressional Research Service, a cloture petition must wait “until the second calendar day on which the Senate is in session. For example, if the motion is filed on Monday, it lies over until Wednesday, assuming the Senate is in session daily.”
After this waiting period ends, the Senate will vote on whether to end debate and proceed to a vote on a matter — it takes 60 votes to end debate on most legislation, and 51 votes to end debate on a nominee. Thus, even though nominees can be confirmed by a simple majority vote, a confirmation vote may still be delayed by a filibuster.
Most Senate Republicans, for example, recently used the filibuster to delay the confirmation of Homeland Security Secretary Alejandro Mayorkas. Although the Senate voted 55-42 to end debate on Mayorkas’s nomination on January 28, the final vote to confirm him did not happen until five days later.
Without unanimous consent to hold an immediate vote on a matter, in other words, a fairly small minority of the Senate can delay a final vote for several hours or potentially even several days. Even after the Senate invokes cloture on a particular matter, the minority can force the Senate to hold up to 30 hours of post-cloture debate, although the number of hours varies greatly depending on what kind of matter is being considered.
When Barack Obama took office in 2009, he needed to appoint approximately 1,000 Senate-confirmed Cabinet jobs, sub-Cabinet positions, ambassadors, judges, federal prosecutors, and US marshals. At the time, Senate rules allowed the Republican minority to force 30 hours of post-cloture debate on each of these nominees.
The result was that if the Senate worked 24 hours a day, seven days a week, and did nothing but confirm Obama’s nominees, Republicans still could have forced the Senate to do nothing else for more than three years before the last nominee was confirmed. Indeed, a 2012 law allowing the president to appoint officials to about 170 executive branch positions, without going through the Senate confirmation process, is best understood as a reaction to widespread filibusters of President Obama’s nominees.
To prevent more such systematic delays, a 2019 amendment to the Senate rules reduced the amount of post-cloture debate to two hours for federal trial judges and for executive branch officials outside of the Cabinet (Cabinet secretaries, circuit judges, and Supreme Court nominees still receive the full 30 hours of debate). Thus, while the filibuster can still be used to delay confirmation votes, it is a far less potent tool of obstruction than it once was.
Four ways to reform the filibuster
In any event, as this brief discussion of filibuster procedure indicates, there are four broad ways that senators can weaken the filibuster without eliminating it altogether.
- Make fewer bills subject to the filibuster: The Senate can create carveouts and exempt certain matters from the filibuster altogether, as it does with bills subject to the reconciliation process.
- Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.
- Make it easier to break a filibuster: The Senate could reduce the number of votes necessary to invoke cloture. This could be done as an across-the-board reform, like the 1975 change to the filibuster rule that reduced the cloture threshold from 67 to 60. Or it could be done by creating a carveout for certain matters, such as the 2013 and 2017 reforms that allowed presidential nominees to be confirmed by a simple majority vote.
- Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.
The Senate may effectively change its rules whenever it wants by a simple majority vote, using the same process that Congress used in 2013 and 2017 to allow presidential nominees to be confirmed with only 51 votes. (Technically, when the Senate uses this process, which is colorfully known as the “nuclear option,” it merely reinterprets an existing rule, but the effect is the same as a rule change.) So if the Senate’s narrow Democratic majority wishes to weaken the filibuster, it has the votes to do so.
With that in mind, let’s take each of the broad categories of reform listed above and lay out some specific filibuster reforms that this Democratic Senate could enact.
Make fewer bills subject to the filibuster
As mentioned above, the reconciliation process permits Congress to pass at least some taxing and spending legislation without having to worry about a filibuster. Another law, known as the Congressional Review Act, allows Congress to override a recent regulation created by a federal agency, and to do so through an expedited process that bypasses the filibuster.
So it can be and has been done — the Senate could create additional exemptions to the filibuster, either through legislation enacted by both houses and signed by the president, or by creating such exemptions through a simple majority vote in the Senate.
Allow certain types of legislation to be enacted without a filibuster
Because a simple majority is all that is necessary to effectively change the Senate’s rules, senators could create any carveout they want to the filibuster. They could exempt any legislation that is co-sponsored by a certain number of senators, for example. They could exempt legislation that touches on certain subjects. They could even exempt any legislation whose title begins with the letter “J,” if that’s what a majority wants to do.
One especially salient possibility here: Democrats in both houses are largely united behind legislation that would strengthen the Voting Rights Act, require states to draw congressional districts using bipartisan commissions, and otherwise make it easier for citizens to exercise their right to vote.
But such legislation has no chance of passing so long as a Republican Senate minority can filibuster it. A simple majority of the Senate could, however, exempt any bill that expands voting rights from the filibuster, a possibility that Sen. Jeff Merkley (D-OR) floated in an interview with the Atlantic’s Ronald Brownstein. That would preserve the filibuster for all other legislation — something Manchin and Sinema seem to value — while allowing Democrats to pass fundamental democratic reforms at a time when democracy has come under attack from the right.
Exempt statehood bills and other legislation that is not subject to meaningful debate
Senate Democrats voted to allow most nominees to be confirmed by a simple majority vote in 2013, largely due to their frustration over Republican efforts to keep certain vacancies open forever — or at least until a Republican moved into the White House.
But there is a logic to treating confirmation votes differently than votes on legislation. The ostensible purpose of a filibuster is to allow senators to continue debating a legislative proposal until they can agree whether to pass that proposal with or without amendments. Unlimited debate means unlimited time to offer amendments to a bill. Nominees, however, cannot be amended — it’s not like Republicans who objected to the Mayorkas confirmation could have introduced an amendment to change Mayorkas’s views on immigration policy.
So it makes sense that the filibuster should apply with less force to unamendable matters such as a confirmation vote.
A similar logic could be applied to statehood votes. Although there are some debatable questions whenever Congress votes to admit a new state — such as what the state should be called or what its precise borders should be — the fundamental question before the Senate is similar to a confirmation vote. Either Washington, DC, becomes a state or it doesn’t. There really isn’t much room for amendments in a statehood bill.
For this reason, the Senate could decide to exempt statehood votes from the filibuster, as well as other matters where debate is unlikely to change the shape of a legislative proposal in any significant way.
A Congressional Review Act for the Supreme Court
Congress used to provide a significant check on the Supreme Court. As a 2012 study by University of California Irvine law professor Rick Hasen found, between 1975 and 1990, Congress enacted “an average of twelve overrides of Supreme Court cases in each two-year Congressional term.” (Hasen defines the term “override” to include acts of Congress that “overturned, reversed, or modified a Supreme Court statutory interpretation holding.”)
But Congress rarely engages in such review of the Court’s decisions anymore. Hasen’s study found that between 2001 and 2012, the number of overrides dwindled to a mere 2.8 per two-year term.
The Supreme Court, meanwhile, has a 6-3 Republican majority with aggressive plans to move American law to the right, even though the American people voted for a Democratic government in the last election cycle. Republicans in the Senate can filibuster nearly any bill seeking to override a judicial decision that misreads a federal statute.
Writing in the Atlantic, Vanderbilt law professor Ganesh Sitaraman proposes one solution to this imbalance of power — a kind of Congressional Review Act for legislation overriding a Supreme Court decision.
Under Sitaraman’s proposal, “if the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process.” If Congress voted to open such a process, a special committee would then draft legislation overriding the Court’s decision. Neither the vote to open the reconsideration process nor the vote to enact the special committee’s legislation would be subject to a filibuster.
Reduce the power of rogue senators
It takes 60 votes to pass most bills through the Senate, but it takes 100 votes to do much of anything quickly. Because unanimous consent is typically the only way to bypass the lengthy cloture process, a single senator can unilaterally delay most votes.
When the Senate’s calendar is packed, moreover, such delays might put off certain votes indefinitely. If the Senate majority leader is racing to enact multiple major bills, to pass appropriations for the coming year, and to confirm a bevy of nominees all at the same time, then the Senate may not have 30 hours to spend confirming a Biden circuit court nominee. (Although after cloture has been invoked, the Senate rules provide that “no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate” — in other words, the minority’s ability to delay a matter is more limited if only a few senators participate.)
The need to get all 100 senators on board in order to move quickly also creates a perverse incentive for many senators. Senators like Ted Cruz (R-TX) and Josh Hawley (R-MO) can present themselves as lone warriors, willing to stand up for conservative causes important to people who watch Fox News or Newsmax, when every other senator agrees to a unanimous consent request. And once a single senator objects to a unanimous consent request, many of that senator’s fellow partisans are likely to join the crusade against a bill or nomination to avoid being attacked by partisan media outlets.
A bipartisan group of senators is reportedly discussing ways to mitigate this problem. According to the Hill’s Jordain Carney, these senators are interested in reforms that would have the effect of “freeing up bills that are held up by one or two senators.”
It’s not yet clear whether a specific reform will emerge from these talks, but it probably wouldn’t be hard to design a new rule that would eliminate Cruz or Hawley’s power to unilaterally take hostages. Instead of requiring unanimous consent to move quickly to a final vote on a matter, for example, the rules could be changed to allow a swift vote unless a small group of senators — perhaps five or 10 — all object to such a vote.
This reform wouldn’t just speed up matters that enjoy overwhelming (but not unanimous) support in the Senate. It would also change the incentives for senators who want to puff up their reputations as lone wolves, as it would no longer be possible for a single senator to unilaterally delay progress.
Make it easier to break a filibuster
The 60-vote threshold is not written in stone. It doesn’t even apply to nominations or to reconciliation bills. And the threshold was reduced from 67 votes to 60 in the fairly recent past. There’s no reason this threshold can’t be reduced again, if not outright eliminated. There’s also no reason the filibuster process can’t be changed to place additional burdens on a bloc of senators who wish to maintain a filibuster.
Reduce the threshold
The simplest filibuster reform would be to reduce the cloture threshold from 60 to a lower number — just as the Senate reduced the threshold for nominees to 51 votes in 2013 and in 2017. The Senate could reduce the threshold for all legislation. Or it could reduce it for bills touching on subject matters such as voting rights or statehood, for the reasons explained above.
Alternatively, the filibuster threshold could be reduced over time. As far back as 1995, for example, then-Sen. Tom Harkin (D-IA) introduced a proposal that would have gradually reduced the number of votes required to break a filibuster. Initially, 60 votes would be required, under Harkin’s proposal, but this number would drop to 57 after several days of debate, and then to 54, and again to 51 after a total of eight days.
Thus, senators who strenuously objected to a bill could hold up that bill for up to eight days — potentially delaying other matters on a crowded Senate calendar in the process. But they couldn’t kill the bill altogether without majority support.
Require “talking” filibusters
The filibuster is often misrepresented in popular culture. The 1939 film Mr. Smith Goes to Washington climaxes in a scene where the titular character speaks for 25 hours straight — a so-called “talking filibuster” — in order to block passage of a corrupt bill. The show Parks and Recreation more recently recreated this scene, albeit on a much smaller scale.
In reality, however, senators do not need to hold the Senate floor in order to maintain a filibuster. They simply have to withhold unanimous consent, and then they can do whatever they want with their time.
In 2012, Sen. Merkley proposed actually requiring senators to speak continuously on the Senate floor in order to maintain a filibuster. Under his proposal, “senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments.” If at any point no senator were present on the floor who wished to maintain a filibuster, “then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.”
Reverse the presumption in favor of filibusters
The Senate’s current rules place the burden of breaking a filibuster on the majority. In order to invoke cloture on most legislation, senators who support that legislation must find at least 60 votes (out of a total of 100 senators) to end the filibuster.
Among other things, placing this burden on the majority can put the entire Senate at the mercy of random events. The majority may have 60 votes to break a filibuster, but it may be unable to do so because a single member of that 60-vote supermajority is stuck at home in a snowstorm. In 2009, Democrats briefly held 60 seats in the Senate, but their ability to legislate was curtailed because Sen. Ted Kennedy (D-MA) spent his final months at home in Massachusetts while he was dying of a brain tumor.
This presumption in favor of a filibuster could be flipped. Instead of requiring 60 affirmative votes to break a filibuster, the Senate could require the minority to produce 41 votes in order to maintain a filibuster. Thus, the burden would fall on obstructionists to ensure that they had enough senators present to block legislation.
Reduce or eliminate the time needed to invoke cloture
Finally, even if a majority of the Senate wants to keep in place a supermajority requirement to enact legislation, there’s no reason the minority should be able to delay matters that already enjoy majority support. Nothing useful was accomplished, for example, by forcing 30 hours of post-cloture debate on the Mayorkas nomination after it was already clear that Mayorkas had enough votes to be confirmed.
Eliminate all post-cloture debate on nominees
As explained above, there’s really no reason that debate on a nominee needs to continue after a majority of the Senate already voted to invoke cloture on that nominee. The nomination cannot be amended, and senators who already voted in favor of cloture are unlikely to change their minds because a few of their colleagues give floor speeches opposing the nominee.
A simple reform, in other words, would be to eliminate post-cloture debate on all confirmation votes (or, alternatively, to eliminate the cloture process altogether for nominations and allow the majority leader to call up any nomination for an immediate confirmation vote). Such a reform would prevent the minority from delaying confirmation votes simply to eat up floor time that could be spent on other matters.
Streamline the process of invoking cloture
The Senate could also reduce or eliminate the time between when a cloture petition is filed and when the Senate can actually hold a vote to invoke cloture. This reform would also reduce the minority’s opportunities to delay bills and confirmation votes that already enjoy majority support.
There is diminishing support for the filibuster within the Senate’s Democratic majority. Indeed, some senators who were recently strong proponents of the filibuster have grown increasingly critical of the minority party’s power to block legislation.
But with the Senate split 50-50, and with Vice President Kamala Harris holding the key tiebreaking vote, Democrats need every single one of their members to support a measure eliminating the filibuster. And at least two of those members, Manchin and Sinema, appear determined to keep the filibuster in place.
But even if Democrats lack the votes to eliminate the filibuster altogether, they still may be able to reform the Senate’s rules. After all, the Senate voted to weaken the filibuster in 2011, in 2012, in 2013, in 2017, and in 2019. Filibuster reforms are not rarities. If a majority truly values getting something done in the face of the filibuster, it has other avenues to do so short of abolishing the tactic.
Author: Ian Millhiser