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You’ve likely heard lately that the filibuster is broken. The filibuster, created as a tool to avoid a tyranny of the majority, has too often become a means to stall action in the U.S. Senate on legislation that one political party does not support.
With Democratic leadership — in the White House, U.S. House and Senate — pushing an ambitious agenda, there is a renewed talk of reforming or eliminating the filibuster.
A filibuster traditionally allows a senator to stall Senate action by talking on the floor. Now, just the threat of a filibuster is sufficient to stop a lot of legislation. A filibuster is ended by what is called cloture, a move that requires 60 votes, a difficult task when the Senate is divided 50-50, as it is now.
“The filibuster has become a significant problem in an era of intense polarization,” said Rich Powell, a political science professor at the University of Maine.
The filibuster was rarely used until about 15 years ago, he noted, but now it is routinely used to stop many major bills, essentially requiring a supermajority to pass legislation.
That’s why efforts to reform the filibuster — such as limiting when it can be used and requiring senators to actually hold the Senate floor by talking — deserve strong consideration, Powell said.
However, focusing on the filibuster may be too narrow a perspective. In reality, Congress itself is broken. In recent years, lawmakers are generally spending less time in Washington, passing fewer substantive bills in favor of massive omnibus legislation and often taking too long to confirm presidential nominees to courts and federal agencies.
Eliminating or revamping the filibuster without addressing other these and other impediments to bipartisanship and comity isn’t likely to make much of a difference, said University of Maine political science professor Mark Brewer. A shortened work day and work week in Congress, for example, means lawmakers spend less time working together to negotiate bipartisan bills. Brewer also points to changes in campaign finance law and gerrymandering of U.S. House districts for increasing partisanship. Even the elimination of earmarks, often derided as pork barrel spending, has taken away a tool for brokering deals to pass legislation.
And, Brewer noted, most real filibusters just slowed down passage of bills. It didn’t derail them. Even as filibusters were used to stall civil rights legislation in the 1950s and ‘60s, these bills were ultimately passed.
In 2017, a group of 61 senators, led by Sen. Susan Collins and Democratic Sen. Chris Coons of Delaware, encouraged the preservation of the filibuster.
“We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body,” the senators, including Angus King, wrote in a letter to then-Majority Leader Mitch McConnell. “Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.”
Although the makeup of the Senate has since changed — and the body is more closely divided — this remains a reasonable stance.
In an interview Thursday, King said he was ready to eliminate the filibuster when he was first elected to the U.S. Senate in 2012. After being in both the minority and majority party, he said he is now reluctant to eliminate the filibuster because it can be a needed check on harmful legislation. But, he said, he is willing to consider modifications to ensure that significant bills can once again be passed in the Senate.
There are downsides to ending the filibuster. After frustration with Republicans blocking judicial nominees, then-Senate Majority Leader Harry Reid, a Democrat, led an effort to end the filibuster for executive and judicial nominees. Democrats in the Senate used a majority vote — which bent or broke the chamber’s rules — to eliminate the filibuster for most presidential nominees.
Since then, Republicans expanded that approach to Supreme Court nominees. McConnell shepherded three U.S. Supreme Court picks from President Donald Trump through close votes in the Senate. Justice Neil Gorsuch was confirmed by a 54-45. Justice Brett Kavanaugh was approved on a 50-48 vote and Justice Amy Coney Barrett received 52 votes. These are the lowest affirmative votes of any Supreme Court justices in 30 years.
The U.S. Senate, and Congress as a whole, has become increasingly rancorous and dysfunctional. Ending the Senate filibuster won’t solve the deeper — and harder to address — problems that are at the heart of this dysfunction. But, as it is currently used, the filibuster threat is counterproductive to a functional democracy. Modifying the filibuster to limit its use could be a prudent way to see if it is fixable before considering more sweeping, and potentially harmful, steps.