In the wake of yet another school shooting in Uvalde, all eyes are turned towards the federal government to do something—anything—to prevent the next American massacre. While sweeping legislation banning assault rifles or increasing age limits for buying guns are unlikely to pass, real support does exist for key gun reforms. A law strengthening background checks passed the House last year with bipartisan support, and even Joe Manchin, the 50th vote in the Senate, has pushed similar bills in recent years and is likely to vote for it.
But the reforms are all doomed to fail. To see why, we can look back to 2013, when President Obama pushed for gun reform in the wake of an all-too-familiar school shooting. A watered-down compromise bill cosponsored by Republican Pat Toomey, which would have required background checks for commercial sales while exempting personal sales, failed to pass the Senate by a vote of 54 for and 46 against. Yes, you read that right. A bipartisan bill to increase gun safety—one with more than 90% public support—failed to pass despite garnering a majority of Senate votes. To understand how such a bill failed, and the institutional idiosyncrasies which will continue to make popular reform such as background checks fail, one must first understand the filibuster.
An Influential Accident
In the context of the Senate, a filibuster essentially involves ‘talking a bill to death’ by extending debate time to delay action on legislation. Initially a historical happenstance that came about thanks to Aaron Burr (yes, that Aaron Burr) there was no way to stop filibustering for more than a century: a lone Senator could hold up debate on a bill as long as they could talk, even if the entire rest of the chamber opposed them. Given the immense power that was accidentally given to Senators in the minority through the filibuster, there was an incredible vested interest in maintaining the procedure. It was used extensively by Southern Democrats, for example, to block Civil Rights legislation. Piecemeal changes throughout the 20th century culminated in a 1972 reform that allowed for invoking cloture—that is, ending debate and bringing a bill to a vote—with 60 senate votes. This is the crucial obstacle that the Manchin-Toomey gun control bill could not overcome; it was not directly voted down, but simple failed to be brought to a vote at all, resulting in limitless and never ending ‘debate.’
The filibuster used to entail talking for hours on end to delay the passage of a bill. These lengthy speeches have been idolized through movies such as Mr. Smith Goes to Washington, and have gained Senators such as Ted Cruz and Rand Paul lots of attention. Since the 1970s, however, filibustering has not required any actual time be devoted to debating a bill. Most filibusters are now ‘silent’; through informal procedures, senators can anonymously place ‘holds’ on bills, which ends considerations for a bill unless cloture can be invoked. Crucially, this maneuver does not require any effort on the part of the filibustering senator. The onus instead lies with the three-fifths majority, which must go through the arduous process of voting for cloture. Long talks by Senators are thus entirely unnecessary to stall for time; any ‘talking filibuster’ today is a mere PR stunt.
As filibustering has become easier and the threshold of votes required to end debate has been lowered, filibusters have skyrocketed. Initially used sparingly due to their destructive nature and the tangible physical strain they placed on senators, they are now used nearly daily when Congress is in session. The number of cloture votes began rising steadily in the 1970s and saw a huge spike in the Obama administration, culminating in nearly 300 votes to end cloture in the 2017-2019 Senate. Even this measure understates the impact of the filibuster, as it merely measures total cloture votes and does not include successful filibusters resulting in no calls for cloture.
To prevent rampant dysfunction from stopping the passage of important bills, the Senate has exemptions to the filibuster. In the 1970s, at the same time that the threshold for cloture was lowered and silent filibusters became prevalent, Congress created processes for reconciliation bills in the Congressional Budget Act of 1975. Reconciliation bills are passed through a special process and can only affect government inlays, outlays, or debt limits. Furthermore, in practice only one reconciliation bill can be passed for each fiscal year.
Introducing this workaround, however, has served only to complicate and weaken the legislative process. Reconciliation bills are extremely procedurally limited, with debates limited to only 20 hours. While this may seem adequate for bills of smaller sizes, the fact that only one reconciliation bill is passed per year means that such legislation is often gargantuan in size; the American Rescue Plan, for instance, a signature achievement of the Biden Administration’s first year in office, cost about $1.9 trillion. Bills of such size require much more time to consider adequately and limiting their debate can often leave important flaws unnoticed. After the 20-hour limit, any remaining amendments proposed to the bill are voted on with no debate in what’s known as ‘vote-a-rama’, giving Senators almost no time to consider the merits of each amendment and whether to include it in the final bill. The solution to the problem of unlimited and unstoppable debate has been replaced with a problem of too little debate.
Additionally, a caveat to reconciliation bills known as the Byrd rule requires that every provision of such bills be somehow related to the federal budget. This severely hinders the Senate’s ability to institute important reform on non-fiscal issues such as gun control, immigration reform or economic regulation. This limitation was on display in the debate over the 2021 American Rescue Plan, which was a reconciliation bill to avoid an inevitable GOP filibuster. Senator Bernie Sanders introduced an amendment that would institute a $15 minimum wage. The Senate Parliamentarian, an official who enforces the chamber’s rules, rejected his proposal since it would not tangibly affect government inlays or outlays. The case study serves to show the convoluted arguments that legislators must make in order to pass legislation that enjoys widespread popular support.
Finally, reconciliation bills can only affect government deficits within certain budget windows—up to ten years long—giving them limited staying power as laws. Nearly every major legislative package of the 21st century, from the Bush and Trump tax cuts to President Biden’s American Rescue Plan, have been passed as reconciliation bills and thus have adhered to this window in their deficit spending. Policymakers often hope that passed laws will become more popular over time and will thus get extended permanently with a 60-vote majority before they expire. As I’ve argued before, however, this argument makes unrealistic assumptions about the political good will of future legislatures as well as levels of institutional inertia. An important example of a popular policy that failed to get extended into permanent law is the Extended Child Tax Credit, a provision of the American Rescue plan that expired early this year despite a 60 percent approval rating.
An Uneven Playing Field
In its current form the filibuster is not only deeply corrosive to democratic efficacy but is asymmetrical in its effects on each political party. By making it more difficult to pass legislation, a filibuster would implicitly favor conservatives over liberals in any government. In the United States this is especially the case, as Democrats have been far more active as policy makers since the 1970s and Republicans have focused more on retrenchment and limiting government expansion than on legislative action. The Republican Party, after all, failed to even release a party platform ahead of the 2020 election.
The exceptions to the Senate filibuster that already exist lend priority to Republican agendas. During the Obama and Trump administrations the filibuster was eliminated for federal lower court nominations and eventually the Supreme Court, laying the groundwork for conservatives to shape the direction of the court and eventually overturn Roe v. Wade. Reconciliation bills also lend themselves perfectly to the types of policy that Republicans prefer. Some of the largest conservative priorities from the last decade have been packaged as reconciliation bills, including defunding Obamacare and the Trump Tax Cuts. Republican interests are clearly already being served very well in the current Senate environment.
Beyond fiscal policy like tax cuts, the Republican agenda is also incredibly unpopular: on issues such as immigration restriction, healthcare, and abortion, voters side with Democrats. Being unable to enact such policies helps the Republican establishment, as its elected officials do not have to decide whether to follow through with their campaign promises that could paradoxically threaten their reelection. Conservative operatives recognize this, which is why there is such asymmetry between Democratic and Republican attitudes towards the filibuster. In messaging targeted at conservatives, the GOP often warns of ‘higher taxes and gun control and taxpayer-funded abortion’ or ‘statehood for Washington DC or Democrats’ voting rights package’. It is clear that Republicans see filibuster reform as a threat.
Republicans have been prominent in defending the filibuster recently, given that Democrats have control of both chambers of congress and the presidency. This makes sense to many experts such as Richard Arenberg, who views the filibuster as an apolitical device that protects the rights of the minority party. In that sense, although the filibuster is “framed as a partisan issue, it isn’t, really. Whichever party is in the majority doesn’t like the filibuster; whichever party is in the minority appreciates it.” This point seems to have some validity. As conservatives have pointed out, Democrats used the filibuster during the Trump presidency to block most of his non-monetary legislative goals.
Yet it would seem an extraordinary ask to require that Democrats deliberately make the playing field uneven and refuse to use the filibuster just to maintain some kind of moral high ground. Criticizing the existing institutional framework of the Senate does not preclude Democrats from operating by the same rules as their opponents. It would be just as ridiculous to expect Senate Republicans to require 60 votes for passage of their own legislation in the event of the filibuster being abolished.
Arenberg’s argument also fails to recognize just how asymmetric the filibuster has become, as evident in the attitude of each party towards the filibuster when in different positions of power. At the outset of the Trump presidency, 61 senators signed a letter voicing their support for the filibuster; surprisingly, the letter was spearheaded by a Republican—a puzzling counterpoint to those who argue that only political minorities defend the filibuster. Mitch McConnell, the leader of Senate Republicans for more than a decade, has been steadfast in his support for the filibuster even when he was pressured to eliminate it by President Trump in 2017. Considering McConnell’s own record of hypocrisy—regarding Supreme Court nominations, for example—one might be reluctant to take him seriously and instead suspect that it is never in his or his party’s political interest to abolish the filibuster. It would seem extraordinary that GOP Senators such as Ted Cruz, who attempted to overturn the 2020 election, are being genuine when they defend the filibuster by invoking the institutional integrity and traditions of the Senate. This double standard becomes much more understandable when one realizes that Senators’ stance on the filibuster is a matter of political convenience and not of their moral integrity.
Roadblocks to Reform
Given how destructive the filibuster can be to democracy, there is a growing movement both inside and outside the Senate to reform it or even abolish it. Formally, changing the Senate rules and procedures requires a two-thirds vote, which is unlikely to happen any time soon. A second option, however, known as the ‘nuclear option’, would allow for new procedural precedents to be set through a simple majority vote. It has been used twice before, first to remove filibustering from lower court nominations by a Democratic Senate and again to remove the filibuster for Supreme Court nominations by a Republican Senate.
Democrats have actually gotten incredibly close to limiting the power of the filibuster. By a vote of just 48-52, the Senate narrowly failed to implement a ‘talking filibuster’ for the purpose of debating the John Lewis bill to protect voting rights. This reform would have abolished the placing of informal holds on bills and would require Senators to actually debate in the Senate chamber to delay passage of bills. Democrats seem almost completely united in opposition to the filibuster, at least in its current form. Yet two of their own, Kyrsten Sinema and Joe Manchin, are stopping them.
This would be the point in the article where I should propose some kind of solution to the issue of the filibuster. I was going to recommend instituting a talking filibuster again by tying it to an important issue with widespread support—until I saw that Manchin and Sinema had blocked it. I considered even further steps to take such as eliminating reconciliation bills, or allowing them to be filibustered, forcing Republicans’ hands on the issue and requiring them to abolish the filibuster to accomplish anything. But the odds of such a proposal passing are slim and would easily be seen through as essentially a referendum on the filibuster. In the end I reached an astoundingly simple insight: the filibuster will only be reformed when a majority of the Senate actually wants to pass the policies that the filibuster prevents.
Opposition to the filibuster by these key Democrats is not due to concerns over institutional norms or bipartisanship; Manchin and Sinema don’t want to end the filibuster because they simply don’t want to have to operate in a non-filibuster Senate. It is no surprise that the two Democrats defending the filibuster are also the two most conservative. A quick look at the news will tell you that they by no means endorse the Biden administration’s agenda, and have in fact stymied it at every turn. Their support of the filibuster is thus a reflection of their own worries over what might be passed after its abolition, and the potential pressure they would face to vote with their party.
This revelation offers a somewhat comforting, if also disappointing, conclusion. Filibuster reform and active government policies are tied at the hip; if a majority of Senators who believe in active government ever come into power, the filibuster will fall. Senators are not stupid, and their professed criticism or defense of the filibuster are more reflective of their political leanings and chances of reelection than their affinity for an ancient and convoluted procedure. Even if the filibuster were somehow magically abolished overnight, the Democratic party would not be able to pass much. The very same Senators who defend the filibuster are the ones who oppose progressive policies. In this sense, therefore, the filibuster is not some procedural bogeyman that is the only thing standing in the way of an active government, but is rather a formality that Senators hide behind to avoid the passage of laws they disagree with. The anticlimactic answer to the issue of filibuster reform is that there simply isn’t enough political will for it yet. But this also means that the filibuster is not an opaque tradition permanently embedded in the very fabric of American government; instead, it is just a mechanism that, like any other policy, lives or dies by the majority of the Senate. Demanding bold and decisive elected officials who actually want to pass legislation will eventually yield filibuster reform and usher in a more efficient, effective and active federal government.