The filibuster has become a hot topic of conversation in the United States, with Democrats now having control over all three branches of government. And it has become a major barrier to passing meaningful legislation, such as introducing a $15/hr minimum wage, stimulus checks or Medicare For All.
For the first time since 2011, the Democratic Party has control over the House of Representatives, the Senate and the White House. But nearly two months into the Biden administration, everything from $2000 stimulus checks to an increase in the minimum wage have yet to make it past the Senate floor, due to a political procedure known as the filibuster.
What is the filibuster?
The filibuster is a procedure where one or more members of congress debate over a piece of legislation to delay or entirely prevent it from going to a vote. Senate rules permit a senator or senators to speak for as long as they wish and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn”. Therefore, if a Republican Senator wants to use the procedure, they can do so, meaning that the legislation in a Senate that is split 50-50, with Vice President Kamala Harris being the deciding vote in the event of a tie, will never make it to the floor unless every Democrat and 10 Republicans would have to support a bill before President Biden is able to sign it into law.
However, in the past, a Senator would have to keep talking continuously, without pause, to maintain the filibuster. In the modern day Senate, however, one can simply use quorum-busting to achieve the same thing now, without having to continuously speak to maintain the filibuster. Now, Senators can simply declare themselves absent and prevent the Senate from taking action due to the absence of quorum (ie. 60 out of 100 Senators have to be present). Without a supermajority, Democrats cannot do anything without convincing 10 Republicans to declare themselves present in order to hold a vote on it.
The History of the filibuster
Although not explicitly mandated in the Constitution, Article 1 Section 5 stipulates that “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
Until the late 1830s, however, the filibuster remained a solely theoretical option, never actually exercised. The first Senate filibuster occurred in 1837. In 1841, Senator Henry Clay tried to end the debate on a bill to charter a new national ban via majority vote and Senator William R. King threatened a filibuster in what was a defining moment for the procedure. When other Senators sided with King, Clay backed down and the proposal was blocked.
The filibuster then remained a fairly inconsequential procedure up until World War I, under the Presidency of Woodrow Wilson, after a group of 12 anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. Then Senator Huey Long of Louisiana used the filibuster in the 1930s to promote his populist policies. He recited Shakespeare and read out recipes for “pot-likkers” during his filibusters, which occupied 15 hours of debate. In 1953, Senator Wayne Morse of Oregon set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Then Democratic Senator Strom Thurmond of South Carolina broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes. Senator Robert Byrd of West Virginia was also determined to prevent the Civil Rights Act and a 14-hour and 13 minute address formed part of a 75 hour debate with Southern Democrats attempting to kill the bill.
As recently as this year, however, Democrats have been using Budget Reconciliation to get around the Filibuster, a a procedure created in 1974 as part of the congressional budget process. It only requires a simple majority in each house to pass legislation. During periods of single-party control in Congress and the Presidency, reconciliation has increasingly been used to enact major parts of a party’s legislative agenda by avoiding the 60-vote rule. Notable examples include the American Rescue Plan Act of 2021 for Covid-19 that was put through by Bernie Sanders, as well as the Tax Cuts and Jobs Act of 2017, which implemented favourable tax cuts for the ultra-wealthy.
Will the filibuster be reformed?
President Joe Biden has recently come out in support for reforming the filibuster (which itself could be filibustered) and remove quorum busting, returning to the talking filibuster, which would make passing legislation somewhat easier.
There’s a growing disillusionment among Americans lately, who are desperate to see their government lift them out of the Covid-19 catastrophe that has brought the country to its knees, but the elected Republican officials are continuously moving to block legislation with what is widely regarded as an outdated rule that Biden himself says is making “Democracy [have] a hard time functioning”.
With Biden’s support, and more importantly popular support (which Democrats don’t currently support ending it – but opinions on reforming it are shifting), there seems to be a better chance that the filibuster will be reformed sooner rather than later. So, everyone in the United States may have a bit of hope knowing that the representatives that they voted into power are the ones in control, rather than a minority invoking counter-productive procedures.