Debate rages over US Senate filibuster, legislative ‘weapon of mass destruction’

·6-min read

The Senate filibuster, a major cause of the US’s political gridlock, has become the subject of fierce contention in Washington. On Tuesday US President Joe Biden said he wanted to reform it, the same day GOP Senate Minority Leader Mitch McConnell promised “scorched earth” if it were abolished.

Biden on Tuesday announced plans to reform the filibuster, the controversial parliamentary procedure that can block or delay Senate action, after a chorus of Democrats expressed their desire to scrap it.

“I don’t think that you have to eliminate the filibuster,” he told ABC News. But the Senate should return to the system used “back in the old days” when “you had to stand up and command the floor; you had to keep talking”.

“You’ve got to work for the filibuster,” the president continued. “It’s getting to the point where, you know, democracy is having a hard time functioning.”

The previous day, the number two Democrat in the Senate, Majority Whip Dick Durbin, used stronger rhetoric than Biden. The filibuster is “making a mockery of democracy”, he told the chamber.

Biden’s statement came just hours after McConnell said the GOP would retaliate against its abolition: “This chaos would not open up an express lane to liberal change; it would not open up an express lane for the Biden presidency to speed into the history books,” he told the Senate. The chamber would become “like a 100-car pileup – nothing moving”.

“Nobody serving in this chamber can even begin [...] to imagine what a completely scorched-earth Senate would look like,” McConnell continued.

As the Senate hangs on a 50/50 balance between the Republicans and Democrats, most of the legislation in the expansive programme Biden hopes to pass would require 10 GOP Senators to cross the aisle to stop a filibuster. Analysts see that as an unlikely prospect.

The filibuster was strengthened through the “two-track” procedure instituted in 1970. This means that the mere threat of the filibuster can stop a bill deemed unlikely to win 60 votes – with Senators able to make that threat without even speaking on the chamber floor.

Over recent years both parties have ratcheted up their use of the filibuster when in the minority in the Senate. When George W. Bush was in the White House, Senate Democrats started to frequently deploy the filibuster to block Bush’s cabinet and federal judiciary candidates. Republicans cried foul. But when Obama took office they resorted to the same obstructionist technique – as did the Democrats after Donald Trump replaced Obama.

When Trump was in office, the Democrats were “very comfortable with the way the filibuster worked”, moderate Republican Senator Mitt Romney said on Tuesday.

The escalation in recourse to the filibuster on both sides is “an expression of the increasing polarisation” in US politics after the 1980s, said Robert Singh, a professor of American politics at Birkbeck, University of London. “For Biden, wanting to reform the filibuster is the logical conclusion of polarisation, because he understands that with the Senate tied the Republicans can use the filibuster to frustrate his ambitious agenda.”

Advocates of maintaining the filibuster in both parties have long said that it encourages bipartisan co-operation. But the amplifying polarisation over the past three decades has undermined this idea, Singh argued: “Before there was a sense that anyone filibustering a bill was doing so on the basis of principles, but now that position is difficult to sustain when we see both parties employing it as a weapon of mass destruction to stop the other side getting it wants.”

‘A short-term bet’

In this context, it seems that Biden and some other powerful Democrats see getting rid of the filibuster as a double-edged sword. Centrist Democrats Senator Kyrsten Sinema of Alaska and Senator Joe Manchin of West Virginia have both stated their commitment to keeping the filibuster. Manchin’s statements on the matter have been forthright: “You cannot get rid of the filibuster unless your intention is to destroy the Senate,” he said on March 16.

Abolishing the filibuster is one of the few changes the Senate can make with a simple majority vote. But given the current 50/50 split, Sinema’s and Manchin’s opposition would preserve the filibuster from any Democrat push to scrap it.

“There is a principled element to this stance,” Singh said. “I think they genuinely believe the filibuster is important to the Senate, that it protects minority rights, and that when the GOP is in control the Democrats could use it to resist the Republicans.”

“Biden seems to think the same: that doing away with the filibuster would be a short-term bet, that if and when the Democrats find themselves in a minority they risk having the GOP ride roughshod over them,” Singh continued. “But if we see the filibuster remain, we could see huge pressure from the rest of the Democrats.”

Several other Democratic Senators are sceptical about weakening the filibuster. Lowering the 60 vote threshold could give a lot of power to GOP majorities in the future, and that is “one of the reasons why I’m hesitant”, Senator Dianne Feinstein of California said.

It remains to be seen how Biden and likeminded politicians could chart a successful course between the Scylla of legislative gridlock and a potential Charybdis where each party uses Senate majorities and control of the White House to pass laws the other considers profoundly unpalatable. In recent history the Senate has not been controlled by one party for long; elections have bounced it from one to the other five times since 2000.

Given the intensely partisan attitude in Washington, the president’s proposal to bring back the “talking filibuster” could be a troublesome halfway house between the status quo and axing the mechanism, Singh said: “You could argue that it would actually strengthen the filibuster by making it more arduous for Senators to engage in this process.”

Since polarisation made bipartisan law-making a rarity in the 1990s, presidents’ main tool to circumvent gridlock has been a recondite procedure called “budget reconciliation”. This allows some legislation related to taxes and spending to go through the Senate with a majority vote.

Biden used reconciliation to get his $1.9 trillion Covid-19 economic stimulus passed on March 6. Likewise, Bill Clinton passed his welfare reform through reconciliation. Bush Jr. and Trump used it to get their tax cuts signed into law, as did Obama with aspects of his Affordable Care Act dubbed Obamacare.

However, Biden’s stimulus bill could not enshrine in law its $15 per hour minimum wage proposal. The Senate parliamentarian, an impartial ombudsman, ruled that it would have disqualified the bill for reconciliation.

This points to the awkward nature of leaning on reconciliation, Singh noted: “The issue of what is and is not a budgetary matter implicating taxes and spending is ambiguous. When reconciliation was used to get Obamacare through, it looked like quite a stretch to many observers – and it’s the same thing with the Biden stimulus; some elements were not necessarily budgetary.”