Reform the Legislative Filibuster, Don’t Abolish It

Presidential candidate and former Senator and Vice President Joe Biden said, “If there’s no way to move other than getting rid of the filibuster, that’s what we’ll do.”

By Mark Strand and Tim Lang

This debate over the filibuster usually occurs at the beginning of every new Congress. The Senate does not need to completely eliminate the filibuster; it just needs to return to the days when Senators had to be present on the Senate Floor physically.

(This first appeared on October 14, 2000, at https://www.congressionalinstitute.org/2020/10/14/reform-the-legislative-filibuster-dont-abolish-it/)

Lots of people think the Democrats will take control of the White House and Senate in the 2020 elections. With a continued majority in the House of Representatives, this would give them unified control over the government for the first time in a decade. If that happens, some on the left would like to eliminate the legislative filibuster to unleash a flurry of progressive legislation.

High-profile Democrats have endorsed the idea earlier this year. Presidential candidate and former Senator and Vice President Joe Biden said, “If there’s no way to move other than getting rid of the filibuster, that’s what we’ll do.” Senate Minority Leader Chuck Schumer of New York, who would become the Majority Leader if the Democrats win the Senate, said “nothing is off the table” to move legislation. Former President Barack Obama called for eliminating the filibuster in his funeral eulogy for the late Congressman John Lewis.

If they do this, they will regret it since they won’t be in the majority forever, and perhaps not for very long—especially if they let loose a geyser of liberal laws and voters kick them out in two years.

But it’s understandable that they would want to do something. There’s no doubt that both parties dislike the filibuster whenever they are in the majority.  Indeed, the current practice of the minority party filibustering just about everything has made the Senate the most dysfunctional branch of government. Rather than get rid of the filibuster, however, the Senate should reform it.

In the early 1970s, to keep Senate business moving in the face of vexing filibusters, Majority Leader Mike Mansfield, a Democrat from Montana, devised the so-called “two-track” system. For one part of the day, the Senate can debate the business being filibustered, but it can consider other, less controversial business during a different part of the day. This change essentially limited the time filibustering Senators needed to be on the Floor. Today, practically speaking, Senators can filibuster without coming to the Floor at all since the Majority Leader will often not even schedule debate on a piece of legislation unless he has 60 votes to invoke cloture. Since the Majority Leader can use the two-track system to bring up other legislation that is not being blocked, filibusters have gone from being dramatic talk-a-thons to a silent death sentence for legislative ideas.

Since filibustering is no longer as arduous as it once was, making it difficult once more is the key to reducing their frequency. Force the filibustering Senators to keep talking on the Floor. It’s true that there are ways for Senators engaging in a talking filibuster to lighten the load (such as by arranging a string of speakers against a measure). However, requiring them to talk about each measure they oppose will consume much of their most valuable resource: their time. Requiring Senators to hold the Floor and talk for hours would force even the most garrulous lawmakers to be choosier in the issues they filibuster.

The classic film Mr. Smith Goes to Washington depicted the iconic talk-a-thon style filibuster. It’s time to bring that kind of filibuster back. (Photo: Wikimedia Commons)

In addition to forcing Senators to hold the floor continuously and talk until they are hoarse, eliminating the filibuster on the motion to proceed would be another way to reform the practice. If the Senate Majority Leader cannot obtain unanimous consent to structure debate on a bill, he must make a motion to proceed to begin debate on it. With some exceptions, Senators can debate the motion to proceed, meaning they may also filibuster it. In other words, they can filibuster even the attempt to bring a bill before the Senate for consideration and debate. Making the motion to proceed nondebatable in all circumstances (or changing the rules to impose a time limit on the debate on the motion) would eliminate this opportunity to filibuster and allow a simple majority to bring up a bill for consideration.  Senators would still be able to filibuster the bill once the debate began.

The Senate has a long history of reforming the filibuster without eliminating it. On a number of occasions, the Senate changed elements of the practice, including the majority required to end debate. Additionally, when the Republicans considered using the nuclear option in 2005, the Gang of 14, a bipartisan group of 14 Senators, agreed not to filibuster judicial nominees except “under extraordinary circumstances.” And in 2011, then-Majority Leader Reid and then-Minority Leader McConnell made a “gentleman’s agreement” to speed up Senate business in various ways. One provision was that Republicans would refrain from filibustering the motion to proceed, and another was that the Democrats would not use the “nuclear option,” a procedural sleight of hand used to change the filibuster on a partisan basis.

Of course, the Senate majority, when each party has been in control, has used the nuclear option. In 2013, Senate Majority Leader Harry Reid, a Democrat, invoked the nuclear option to eliminate the filibuster for most nominations except for the Supreme Court. In 2017, Senate Majority Leader Mitch McConnell, a Republican, returned the favor to eliminate the filibuster for nominations to the Supreme Court. Additionally, in April 2019, Senator McConnell used the nuclear option to shorten post-cloture debate time on nominations for District Court positions and sub-Cabinet level appointees. These were sharply partisan votes, however, and increased the acrimony in the Senate. Hopefully, since they were departures from the tradition of reforming the filibuster through compromise and consensus, they come to be regarded as aberrations in the development of Senate procedure and not the go-to tactics going forward.

The Senate has long been heralded as the world’s Greatest Deliberative Body. However, it is currently perhaps one of the free world’s most dysfunctional legislatures.

The various attempts to save and reform the filibuster required compromise between the two parties, both on the leadership and rank-and-file levels. Relations between the two parties are so fraught today that such compromises seem impossible. As difficult as a compromise might be, it’s necessary. We have a Senate with equal representation to moderate legislation and protect minority rights, and requiring compromise brings the political minority into the legislative process. That’s difficult and requires much patience, but it’s worth it.

The Senate has long been heralded as the world’s Greatest Deliberative Body.  Currently, it is perhaps one of the free world’s most dysfunctional legislatures.  By returning to the centuries-old tradition of compromise and respect for the institution, the Senate can go a long way toward recovering its tarnished reputation.

For an extended treatment of the filibuster, see Richard Arenberg and Robert Dove’s excellent book Defending the Filibuster: The Soul of the Senate.

Mark Strand is the former President of the Congressional Institute, and Timothy Lang is the Institute’s research director.