US Senate: The popular perception of a filibuster involves a lone senator speaking for hours and refusing to cede the floor in an attempt to delay a vote
Joe Biden’s legislative agenda has effectively stalled in Congress one year into his presidency, despite his own party’s narrow control of both chambers.
The main culprit is a long-standing Senate maneuver known as a “filibuster,” which Biden said Tuesday he was determined to override on the critical issue of voting rights.
60: the magic number
A filibuster, as depicted in movies and tv dramas, involves a lone senator speaking for hours and refusing to yield the floor in an attempt to delay or block a vote.
The more actual reality is that most topics today require 60 of the Senate’s 100 members to move to a vote – even if the legislation itself requires only a simple majority to pass.
If the minority party has at least 41 seats, it has the right to refuse to allow a vote, which is known as a filibuster.
Since 2010, when Democrats passed the major healthcare reform known as “Obamacare,” neither party has had a 60-seat supermajority.
In theory, the 60-vote rule is supposed to force parties to compromise – which they have done in the past decade to keep the government and military-funded – but critics argue that it severely stymies Senate efficiency and unfairly blocks necessary reforms.
Historical ‘mistake’
The filibuster is not mentioned in the US Constitution, which largely allows each chamber of Congress to make its own rules.
Sarah Binder, a George Washington University professor, explained in Senate testimony in 2010 that it arose largely “by mistake” in 1806 when senators deleted an unused rule that could have served to shorten debate and move to a vote.
Filibusters, she explained, were uncommon in early America but became more frequent as the Senate grew larger and more polarized along party lines.
There was no way to break a filibuster at first, until 1917, when senators implemented a rule requiring a two-thirds majority to force a vote, framing the World War I-era change as a “matter of national security.”
According to the Senate Historical Office, that threshold was lowered in 1975 to 60, or “three-fifths of all senators.”
The ‘nuclear option’
There are already significant exceptions to the filibuster, most notably “budget reconciliation,” which Republicans used under former President Trump to pass their tax reform package and Democrats used under Biden to pass a Covid stimulus package.
Changing Senate rules, such as the one requiring 60 votes to break a filibuster, normally requires a two-thirds majority.
However, rules can be overturned with a simple 51-vote majority under a controversial special procedure.
That so-called “nuclear option” has only been used twice to avoid filibusters: in 2013, Democrats used it to limit filibusters of most presidential nominees, except the Supreme Court.
Republicans used it again in 2017 to prevent filibusters of Supreme Court nominees, ultimately confirming three Trump nominees with fewer than 60 votes.
Declaration of war
During the 2020 election and early in his presidency, Biden argued that he would be able to find a compromise if the filibuster rules were changed.
On Tuesday, however, he shifted his position, advocating for Democrats to use the “nuclear option” to resolve Republican opposition to two voting rights bills that he says are crucial to preserving US democracy.
The problem for Biden is that Republicans will perceive this as a declaration of war, warning that it will open the floodgates to lifting the filibuster on a variety of issues, effectively ending any semblance of bipartisanship in the Senate.
Worse for Biden, the maneuver needs unanimous Democratic support, which is far from certain.
