The inauguration will culminate in a transfer of power in Congress. For the first time in six years, Democrats will control the upper chamber when Vice President Kamala Harris takes office to break the 50-50 tie in the Senate. With Democratic leaders calling for the end of the Senate’s legislative filibuster, the Senate as an institution could change over the next four years with significant consequences for American governance.
Soon to be Majority Leader Chuck Schumer has expressed support for ending the legislative filibuster to clear potential roadblocks for the Democrats’ agenda. Over the past decade, Democratic and Republican leaders have weakened the filibuster by reducing the 60-vote threshold for cloture votes for the consideration of executive and judicial nominations. These changes have expedited the confirmation process, but have done so at a cost of reduced public confidence and increased polarization with nominees passing with no bipartisan support.
In the past, the legislative filibuster was used for many years to stall civil rights legislation. Some argue that Senate rules and precedents requiring three-fifths to vote for cloture (usually 60 votes; reduced from two thirds in 1975), which is a key hurdle before voting on a measure’s final passage, provides too much power to the minority and less populated states. Others contend that the Senate’s filibuster rules and tradition prevent purely majoritarian government, since it requires lawmakers to work together and achieve some bipartisan consensus on major changes before moving forward.
Efforts to fundamentally change the chamber’s rules, such as the elimination of Rule XXII, face serious obstacles in the current 50-50 Senate, particularly given West Virginia Senator Joe Manchin’s strong opposition, not to mention that of other moderate Democrats. But as a political messaging point, axing the legislative filibuster will be on the table throughout the 117th Congress and could gain support among Democrats heading into the midterm election, putting pressure on moderates to support chipping away at it through precedent changes. By next November, Democrats will have opportunities to pick up additional seats and, by then, many progressive caucus members may very well be frustrated by the lack of policy change.
The current moment (as Senators are transferring gavels and changing offices to reflect the new balance of power) is a good time for lawmakers on both sides to reflect on the Senate’s purpose and rules. Six years ago, a retiring conservative lawmaker forced senators to take a position on the rules of the minority during a similar period of transition.
Revisiting Senator Tom Coburn’s Final Amendment
On the afternoon of December 12, 2014, Senator Tom Coburn lay asleep in the Republican cloakroom. Set to retire, the Oklahoma doctor turned lawmaker was about to offer his final amendment. But aggressive chemotherapy to treat his stage IV prostate cancer had left him weak. A longtime staffer had to wake him up and help the fiercely independent man to the floor.
During his time in the Senate, Coburn (my boss from 2011 to 2015) had filed thousands of amendments. He was nicknamed Dr. No for his practice of using legislative tools to block costly legislation. He was driven by the ballooning national debt and its impact on future generations.
But Coburn’s final act was an attempt to protect the power of the minority party, which would soon be the Democrats. Senator Coburn explained his reasons on the Senate floor:
Madame President, later today I will be offering a motion to attempt to undo a precedent set in 2011 that took away the right of all Senators, a right that was provided by Senate rules for Senators to suspend the rules in a post-cloture environment to offer an amendment.
For those unfamiliar, Coburn was referring to a longstanding legislative procedure that allowed any Senator to offer an amendment before the final consideration of a bill. To successfully amend the legislation, the amendment needed 67 votes to pass.
But Senate Majority Leader Harry Reid used a so-called ‘nuclear option’ to change precedent, a move requiring only a simple majority, foreshadowing what he would do to the filibuster of executive branch and non-Supreme Court judicial nominations three years later.
As a result, Senate leadership and the majority party effectively blocked all Senators from attempting to modify legislation before voting. The result of this change was to further weaken the minority party’s power in the legislative process.
Coburn urged his Democratic colleagues to support his amendment, explaining that they now had a vested interest in protecting the powers of the minority:
As I thought about bringing this forward, I thought about how important it is for the new minority. I am not going to be with you. But it is my valid opinion, I believe, that you are not going to see the limitations on your amendments that we have seen in the last 6 years under the new leadership of the Senate.
Coburn’s vote failed. Senators voted along party lines. And the precedent prohibiting Senators to offer amendments was maintained.
The Declining Power of the Senate Minority
One can’t help but wonder if some Democratic lawmakers regretted voting against Senator Coburn that December afternoon and with former Senator Reid years before when he changed precedent.
After taking power in 2015, Majority Leader Mitch McConnell did not reverse Reid’s change.
As a result, all Senators have had even fewer opportunities to offer amendments to legislation on the floor. In 2018, ProPublica and the Washington Post analyzed several decades of data on congressional legislation and found:
Junior senators have fewer opportunities to wade into the issues of the day, largely because Senate leaders limit the number of votes on amendments to proposed legislation. The number of such votes has shrunk to an all-time low under McConnell, less than 20 percent of all roll calls, down from 67 percent 12 years ago.
The declining power of the Senate minority has been most acute and important for nominations. In November 2013, Reid implemented the so-called “nuclear option” for presidential nominations—eliminating the use of the filibuster for all nominations besides Supreme Court Justices. As a result, judicial or executive branch nominations could pass the Senate with just a simple majority vote.
In other words, a judge or cabinet official could take their position without any support from the minority party. This is important for several reasons.
For starters, the nomination process basically amounts to a job interview. The usual give and take between nominees and opposition party lawmakers is critical to establishing bipartisan responsibility for executive branch management and governance. Senators naturally judge whether a candidate is qualified for a position. But they also provide advice and ask nominees to make commitments about how they will perform on the job. Senators often will decide to support a nomination of a qualified candidate if the nominee makes certain commitments including agreeing to cooperate with congressional information requests.
The nomination process is also a valuable tool for congressional oversight. Senators have traditionally had the power to withhold their support for a nominee until the executive branch complies with an oversight request, such as a request for documents or information for a congressional investigation.
But the nuclear option for nominees has meant that the majority party can move a nomination forward without the support of the minority. The administration and nominee have few reasons to make commitments to opposing party lawmakers or to answer oversight requests. (The only remaining real incentive is to potentially expedite the nomination’s vote and passage.)
The result has been increased partisanship and conflict as well as weakened congressional oversight. President Trump has been able to nominate officials that have little if any incentive to cooperate with the minority party if they can earn only the support of all Republican senators. Moreover, Democratic lawmakers were not required to vote to confirm his nominees and therefore had little political motivation or responsibility to support their actions in office.
Of course, Senator McConnell raised the stakes of the nuclear option, extending the rule to Supreme Court nominations in 2017. And the divisive confirmation debates of Justices Brett Kavanaugh and Amy Coney Barrett showcased the potential for debilitating partisanship over nominations if no minority votes are needed.
Democratic Calls to End the Senate Legislative Filibuster
Over the past year, prominent Democrats have called for ending the filibuster. Former Senate Majority Leader Harry Reid has said the move should be “the first item of business” for a future Senate Democratic majority. Minority Leader Chuck Schumer has announced that “nothing is off the table.”
Among Democrats, the most important perspective on ending the legislative filibuster is of course that of President-elect Joe Biden, who served for 36 years in the Senate. Biden was opposed to the change during the Democratic primary but expressed openness during the campaign if it was required to implement his agenda. The President-elect said it would “depend on how obstreperous they become.”
On the other side of the debate, West Virginia Senator Joe Manchin, who will exert significant power in the new 50-50 Senate, strongly committed to opposing ending the filibuster in a recent New York Times interview:
I can assure you I will not vote to end the filibuster, because that would break the Senate. We’ve harmed the Senate enough with the nuclear option on the judges. We’re making lifetime appointments based on a simple majority. The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.
California Senator Dianne Feinstein expressed similar opposition. “I think the filibuster serves a purpose. It is not often used, it’s often less used now than when I first came, and I think it’s part of the Senate that differentiates itself," Feinstein said last fall.
The legislative filibuster appears safe for the 117th Congress, absent a significant change in opinion by Manchin or Feinstein. But progressives on Capitol Hill are likely to continue to press for the change ahead of the midterm election when Democrats could win a larger majority, particularly if they are unable to pass key legislative priorities over the next two years. And additional precedential carve outs, such as to approve DC statehood, are entirely plausible if moderates face sufficient political pressure.
Alternative Approaches to Reforming Senate Rule and Procedure
Congressional leaders could consider alternative reforms to Senate procedure and practice. For example, Norm Ornstein, a resident scholar at the American Enterprise Institute, suggested a different approach in a September 2020 article for The Atlantic:
The answer is to return the filibuster to its original intention—something to be used rarely, when a minority (not necessarily a partisan one, by the way) feels so strongly about an issue of great national significance that it will make enormous sacrifices to delay a bill. There is a simple way to do this—and, in the meantime, keep Rule XXII and mollify Manchin et al. while also providing an opening for Biden and his Democrats to get big things done. That is to flip the numbers: Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.
Ornstein explains that this would significantly increase the cost and burden of extending debate, including requiring elderly Senators to be present at the Chamber during round the clock sessions, while maintaining the minority’s right to oppose certain legislation. While less extreme than the entirely eliminating the legislative filibuster, Ornstein’s approach would do little to maintain the minority’s role in legislating.
University of Miami Professor Gregory Koger offered another approach in 2018. Similar to Ornstein, he recommended requiring 41 votes against cloture to sustain a filibuster. He would also increase the cost of filibustering by ending debate when senators were not speaking or offering amendments on the floor. However, Professor Koger also recommends coupling filibuster reform with other changes to ensure that the minority has opportunities to legislate. For example, he would allow the minority leader to have an opportunity to offer a competing “motion to proceed” to have a role in shaping the agenda and also allow germane amendments during floor debates.
A combination of these approaches to reforming Senate rules, procedure, and precedent could potentially earn consensus support if the balance was maintained to protect the minority’s rights. The Senate could potentially draw from the experience of the House Modernization Committee, which has focused on establishing a bipartisan consensus about House rules and operations among its members. Ninety-seven of the committee’s recommendations were enacted last Congress, and it was extended through the 117th.
Both Parties Should Appreciate the Institutional Role of the Senate
Absent a real movement toward compromise approaches, the debate about the filibuster will likely continue to focus on the traditional institutional role of the Senate and whether current rules and procedures grant the minority too much power to block legislation by requiring 60 votes for cloture.
The American public’s confidence in government continues to fall to new lows, a broad trend that began in the 1960s. According to a 2019 Pew Research Center survey, “only 17% of Americans today say they can trust the government in Washington to do what is right “just about always” (3%) or “most of the time” (14%)” Notably these responses came before the COVID-19 pandemic, the 2020 election, and the recent insurrection at the U.S. Capitol building. Public confidence in the Supreme Court in recent years has also been lower than it was in the early 2000s. While many factors contribute to the public’s declining trust, the hyperpolarization of American politics, congressional dysfunction, and divisive nomination and confirmation processes are surely not helping.
The crux of the debate about the filibuster is whether American governance and public confidence in government would be stronger if the majority could simply exert its will over the minority. Advocates of eliminating the filibuster would argue that empowering the Senate majority would lead to legislative progress that would deliver better governance for the American public. But given the strong polarization of contemporary domestic politics, it’s very likely nearly half of the country would be concerned if either party exerted significantly more power over law and policy. For example, would Democrats have been pleased if President Trump, Speaker Paul Ryan, and Senator Mitch McConnell had been able to quickly approve his legislative agenda when Republicans held a larger congressional majority than Democrats do now?
Historically, the Senate was designed to work its will to reach a consensus rather than to react to the passions of the day and simply implement the will of the majority. And that has forced lawmakers from opposing political parties to work together and seek compromise.
We can already see the cost of eliminating the need for bipartisan support for nominations: it has eroded public confidence. Approving cabinet officials, judges, and Justices on party-line votes has been followed by lawmakers and the public questioning their legitimacy. Extending that majoritarian power to major legislation would further erode public trust and likely increase the focus on political strategies to win a majority, rather than governing.
Both parties should recognize this reality, and also consider their own long-term political interests. Elections come and go. Parties switch control of the chambers of Congress. Progressives dreaming of Congress swiftly enacting a progressive agenda today should consider the long-term consequences. Further undermining the power of the Senate minority will likely reduce public confidence in American governance while exacerbating our current polarization. And someday, leaders from a different party will surely use those same powers to exert their will over your minority.
President-elect Biden campaigned on a vision of unifying the country and pledged to heal the nation’s partisan divisions in his first speech after winning the election. No legislative action would do more harm to our nation’s current polarization than ending the legislative filibuster.
For their part, congressional Republicans should commit to being a productive governing partner with the new administration and majority during the 117th Congress to reduce the likelihood of the filibuster’s elimination. That should involve focusing more on finding common ground on areas of agreement and conducting constructive oversight. It will also require resisting the temptation to exploit current populist opposition to the new administration and majority for political gain. Demonstrating a serious commitment to governing, legislating, and constructive oversight will be an important first step to restoring public trust that has been lost during the Trump administration and the recent misguided effort to resist certifying the results of the Electoral College that resulted in the insurrection at the Capitol.
While national policymakers often focus on the immediate term and the next election, the debate about the filibuster and reforming Senate rules and precedents must consider the country’s long-term interests. It has often been said that, in Washington, where you stand depends on where you sit. When it comes to the rules of the Senate, lawmakers should heed Dr. Coburn’s advice and consider that someday they (and the American people they represent) will once again sit in the minority and appreciate the important institutional role of the Senate.