(Bloomberg) -- With President-elect Donald Trump and his fellow Republicans winning control of the White House plus both chambers of Congress in the Nov. 5 election, the Democrats will have one important tool for checking the power of the majority party: the filibuster. That’s the prerogative enjoyed by the minority party in the Senate to demand never-ending debate to thwart legislation, which must be approved by both that body and the House of Representatives.
Filibusters once required senators to stand and speak for hours, but since the 1970s, the mere threat of one has been enough to grind a bill to a halt. Almost all bills are doomed unless supported by the three-fifths supermajority required to end a filibuster. With 53 of the 100 seats in the new Senate, the Republicans fall short of that. As a result, many pieces of Trump’s agenda will require negotiating with the Democrats. The minority party can also use the filibuster to slow, though not stop, the confirmation of nominees to more than 1,000 positions the president can fill only with Senate approval, including cabinet members, Supreme Court justices, federal judges and ambassadors.
How did the filibuster come to be?
The Senate, envisioned by America’s founders to be a highly deliberative body, was created with no mechanism to end debate on a given topic. Senators quickly realized that long speeches could delay action on legislation they didn’t like. In the 1850s, the practice of talking a bill to death got a name — filibuster, from the Dutch word for “pirate.” In 1917, senators adopted a rule establishing that debate could be ended upon a so-called cloture vote supported by a two-thirds supermajority. That bar was lowered in 1975 to a three-fifths supermajority, meaning it takes 60 votes in the Senate to end debate. But filibusters, once rare and grand affairs, have become commonplace, with most of them occurring since 2000.
Could the filibuster be abolished?
Yes. The Senate could amend its rules again. An effort to formally change the Senate rules could itself be filibustered. But the chamber’s so-called nuclear option provides a parliamentary mechanism for modifying a rule by a simple majority vote.
Trump repeatedly called for the scrapping of the filibuster during his first term as president, during which his party controlled the Senate. But the Republican leader in the chamber, Mitch McConnell, concerned that eliminating the filibuster would haunt Republicans when they were again in the minority, ignored the call. Senator John Thune, who was chosen to be McConnell’s successor Nov. 13, said he’d protect the filibuster.
Democrats faced pressure to end or modify the filibuster from both within and outside the party after they took control of the Senate in January 2021. But with two Democrats-turned-independents — Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — opposed, the party didn’t have a majority for the move.
Are there alternatives to ending the filibuster?
Yes. Some senators have proposed changing the rule to make it more painful to invoke a filibuster by forcing senators to speak continuously to maintain it. Other ideas are to carve out exceptions for key issues and to lower the threshold needed from 60 votes. Senators have also limited the use of the filibuster twice in the past decade, both times in regard to confirmations of presidential appointments. In 2013, Democrats established that a simple majority vote could advance nominees for lower-court judgeships and federal agencies. In 2017, Republicans who then controlled the Senate voted to allow a simple majority vote to confirm Supreme Court nominees. For now, most legislation can still be filibustered.
Doesn’t a filibuster already last only as long as a senator keeps talking?
That’s a myth that can be traced to Mr. Smith Goes to Washington, the 1939 film in which Jimmy Stewart’s character filibusters to heroic effect. In reality, the filibuster has often been deployed to frustrate majority rule, or simply to rally supporters, as when Senator Strom Thurmond of South Carolina stood on the floor for 24 hours and 18 minutes in 1957 in an unsuccessful bid to stop a civil rights bill.
Can any bills make it around the filibuster?
Yes, but not many and it’s not easy. In 1974, the Senate adopted a procedure known as reconciliation that allows for expedited consideration of legislation related to spending, taxing and the federal debt limit.
Under reconciliation, a simple majority is all that’s required for passage. But the process has limits: The Byrd rule — named for Robert Byrd, a Democratic senator who represented West Virginia for 51 years — requires that all provisions in a reconciliation bill have an impact on federal revenue, spending or the debt, and that no extraneous provisions are included.
Republicans used reconciliation to pass tax cuts in 2001, 2003 and 2017. The Affordable Care Act, also known as Obamacare, achieved final passage only by using reconciliation as did President Joe Biden’s signature climate law in 2022. In 2017, Republican Senator Ted Cruz proposed using the power of the vice president to get around advice from the Senate parliamentarian on what could qualify for reconciliation, but some of his fellow senators worried that would be tantamount to nuking the filibuster and could be exploited by Democrats in a future Congress.
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