The popular conception of the filibuster is Jimmy Stewart’s performance in Frank Capra’s 1939 film “Mr. Smith Goes to Washington,” but in modern-day politics, the mere threat of a legislative filibuster has the effect of making the business of the U.S. Senate come to a grinding halt – even when the majority has 51 votes. Gisela Sin is a professor of political science at the University of Illinois Urbana-Champaign and an expert on legislative rules and procedures. She spoke with News Bureau business and law editor Phil Ciciora about the political calculus surrounding the filibuster.
Sen. Joe Manchin (D-W.Va.) recently wrote an op-ed arguing in favor of preserving the legislative filibuster – that is, the ability to block legislation that doesn’t have 60 votes to reach the cloture threshold in the U.S. Senate. A few other Democratic senators also lean that way, as well as a number of Republican senators. Why are so many senators adamant about preserving the seemingly archaic and anti-democratic filibuster?
The filibuster provides a certain segment of senators with a number of tactical advantages in the form of leverage and bargaining power. All of those senators who are the swing votes between the 51st vote and the 60th vote get extra attention in the media when the threat of the filibuster exists.
Those senators in the middle – whether it’s a conservative Democrat like Manchin or Sen. Kyrsten Sinema of Arizona or a moderate Republican like Sen. Susan Collins of Maine – want to preserve the filibuster because it gives them extra power. Manchin, for example, has a lot of power because he’s the swing vote on the Democratic side, so it’s in his interest to keep the filibuster intact.
If there were no filibuster, if things were decided by a simple majority vote, those nine legislators would have no extra bargaining power to extract something out of the bill, because even the mere threat of the filibuster garners concessions from the opposition. Being a swing vote also greatly increases the visibility of that particular senator, and it shows their constituency at home that they’re working hard and care about legislative accomplishments.
In parliamentary-style governments, it’s majority rule. Why should it be any different in the U.S.? What’s the use in preserving a lever of power that helps the minority party?
In some ways, the filibuster favors the majority party. During the Trump presidency, then-Senate Majority Leader Mitch McConnell had enough of a majority that he could have changed the filibuster rules – which was also true with every other Senate for a number of years previous. But they didn’t do that because, if there’s not a unified majority, they can always blame the minority for not doing something. McConnell, for instance, could shift the blame to the Democrats when he knew that he didn’t have enough Republican votes for a certain piece of legislation.
It’s also a way for the majority party to curb or check the president. Former President Trump asked McConnell to get rid of the filibuster many times, and he never did. So it also gives majority party senators some protection from the whims of the executive branch as well.
Former U.S. Sen. Harry Reid has said it’s just a matter of time before the filibuster is gone. Would getting rid of the filibuster help move legislation along, or would doing so become a prelude to a “nuclear winter” with Republicans?
The possibility of changing the filibuster depends on having 51 senators who want to change it. With that said, the filibuster of today is not the same as it was 60 years ago, when it was used by Southern Democrats to block civil rights legislation.
The reality is, the filibuster has been weakened over the years. You can effectively avoid the filibuster through the budget reconciliation process. There are other legislative maneuvers that the majority party can pursue through the Senate rules to work around the filibuster. For example, they could declare that the filibuster doesn’t apply to bills related to voting rights, and then use the so-called “nuclear option” to get the bill through with 51 votes.
The 60-vote threshold for cloture is an internal rule of the Senate. It’s not in the Constitution. A lot of people think it has to do with the Founding Fathers designing the Senate as this slow-moving, deliberate body – the saucer that cools the hot tea sent over from the House, as George Washington said. But the truth is that the filibuster was not part of their constitutional vision for the Senate.
McConnell was able to push through so many justices during the Trump years because that was something that all Republicans wanted. They were all in lockstep. Republican senators wanted to be able to go home to their district and show they could deliver. So they just went for it, because there were no holdouts and no penalties for violating internal Senate rules.
But there were other issues such as repealing the Affordable Care Act when they didn’t have a majority, which means they weren’t able to do anything about it even though there was tremendous pressure to repeal it.
If there are 51 solid votes for something, the majority party can find a way. You will likely see that with infrastructure bill and the voting rights bill. An immigration bill, which is likely to be more controversial and not have 51 solid votes, could go down through the threat of filibuster.
Does the threat of the filibuster give senators an excuse to avoid casting difficult votes?
To some extent, it does allow those swing-vote senators to escape the scrutiny of casting a hard vote. They can voice support for a bill but at same time throw dirt on it by saying it can’t get 60 votes to pass, so it’s not my fault. Again, the filibuster is a convenient tool for blame-shifting.
So it gives them cover for not taking up a hard vote that they would have to explain to their constituents. And in the current polarized political climate, passing on a hard vote is the path of least resistance.
The gridlock and lack of bipartisan votes is really just a reflection of our current political polarization.