Two Filibuster Reforms Worth Considering

[ Posted Tuesday, June 1st, 2021 – 16:59 UTC ]

To begin with, let's review a basic fact: the Senate filibuster was not created by the drafters of the United States Constitution. The filibuster is not actually mentioned (either by name or in any other way) in the Constitution itself. The Constitution merely states that each chamber of Congress "may determine the rules of its proceedings" -- that's it. The filibuster is merely one of those rules; one that has evolved over time. In my lifetime, the filibuster changed from requiring a two-thirds majority vote (67) to only three-fifths (60). Nothing is sacred about either one of those ratios (and I leave it for others to point out, on the grim centennial anniversary of the Tulsa Race Massacre, the historical importance of the term "three-fifths" in the Constitution's original language). But the fact that it already has been recently changed shows that the filibuster rule is subject at any time to any changes that a majority of the Senate agrees upon. No constitutional amendment was necessary to make this change back in the 1970s, as it is merely a Senate rule. So a simple vote changed it.

We as a country are now closer to a major reform of the filibuster rule than we have been since that last big change happened. However, there are Democratic holdouts who are pretty adamant about their opposition to eliminating the filibuster altogether for legislation (it has already been eliminated for confirming judicial and other presidential appointments, up to and including Supreme Court justices, much more recently). So outright elimination may not be in the cards yet, at least not with the current makeup of the Senate.

But complete abolishment is not the only choice on the table. There are some who favor ideological revisions, such as: no filibuster would be allowed if the bill under consideration dealt with constitutional rights (like the right to vote). Already filibusters cannot be used to halt budgetary matters (although there are still plenty of hoops to jump through for any bill that attempts to use the budget reconciliation route). So this would merely add another category of legislation that would be free of the 60-vote filibuster requirement.

Some suggest either lowering the filibuster threshold (to 55, perhaps), or instituting a gradually-decreasing limit (60 on the first vote, 58 on the second, all the way down to eventually allowing a simple majority to prevail). But there are two other proposals that became rather relevant last week, when the Republicans launched their first filibuster of this congressional season.

The vote to approve a commission to investigate the January sixth insurrection was 54-35. You'll notice that this leaves 11 senators unaccounted for. This was due to the timing of the vote. Originally the vote was planned for Thursday evening, which would have left plenty of time for all the senators to leave for the upcoming holiday weekend. To most Americans, a holiday weekend equates to: "we get Monday off," but for congressfolk it means: "We'll leave Thursday night and then take the entire next week off -- heck, we might even take two weeks off!" Sadly, this is not an exaggeration, and eating into this valuable extended vacation time is always a potent threat for any congressional leader.

On Thursday, a bill which was supposed to have actual bipartisan support (an industrial policy measure targeting China) mysteriously stalled. So the insurrection commission vote was pushed back. Eventually, Majority Leader Chuck Schumer just gave up and announced there would be a vote on the commission the next day. The China bill was sidelined until after the break, and on Friday they held the commission vote. But 11 senators had already left early. This included two Democrats, but was mostly Republicans flying home and abdicating their responsibilities as legislators.

The filibuster rule, as written, forces the "yea" votes to total three-fifths of the total number of senators. If a bill can't get 60 votes, it can't advance, no matter how many senators are actually present. But there are two other ways that this rule could be written, both of which would preserve the three-fifths ratio.

The rule could flip the onus on its head and require instead that "two-fifths-plus-one" votes are required or else the bill will automatically advance to a floor vote. This would mean that 41 "nay" votes would be necessary -- at any time -- to stop the legislation from proceeding.

Or the rule could be re-written as: "two-thirds of those senators present in the chamber." Why should shirkers or truants count towards the ratio, after all?

In both cases, with all else being equal, the insurrection commission bill would have passed.

It only received 35 votes against -- six fewer than necessary. So under that reform, it would have moved to the floor. And three-fifths of 89 is 53.4 votes. No matter which way you round that, 54 votes would have sufficed. And that doesn't even count the three senators who were absent but stated that they would have voted for the commission (if all had been present, the vote would have been 57-43, to put it another way). The 54 who were present and voted for it would have been enough on their own.

You'll note that both of these reforms depend entirely on who is in the room when the vote is called. But that's the way it now stands, except that the burden now falls upon those wishing to advance the bill. If there are 41 senators opposed, then they don't even have to show up and cast their vote -- the measure will fail with only 59 votes no matter who else is present in the room at the time.

But why should it? Why should the burden be on those wishing to advance the bill? The filibuster, after all, is a tactic designed to halt a vote from taking place. So the burden really should be on those who are opposed, not in favor.

Reforming the filibuster rule in such a fashion might invite mischief, of course. But one could argue the filibuster rule itself is the root of such mischief, since in America the majority is supposed to rule. Why should a bill require a supermajority just to advance to the floor, when once it does advance only a simple majority is required to pass it? This is sort of an open secret that is swept under the rug by too many lazy political reporters (who use language like: "of course, a 60-vote majority is necessary to pass any legislation, these days"). This is not strictly true (although writers who use it would argue it is practically true -- de facto rather than de jure). But technically a 60-vote majority is not required to pass a bill. All legislation can still pass with only 51 votes. The filibuster vote is merely a hurdle to be overcome on the road to that vote even happening.

Reforming the rules to apply the three-fifths majority to those present or requiring the "nay" votes to muster 41 at any given time might just lead to the exploitation of situations exactly like last week's -- a canny majority leader would just allow debate to stretch far into the night until senators on the other side of the aisle gave up through exhaustion and enough of them went to sleep in their offices. Or flew home for the long holiday break. But that is precisely what the filibuster is theoretically supposed to do -- require lots of stamina from those opposed to the bill. Senators are not forced to give 24-hour-long speeches anymore (the Mister Smith Goes To Washington filibuster of yore), but they should still be required to prove their mettle in other ways. Requiring 41 of them to be present until the session is adjourned seems like a great way to do that. Especially when you consider the advanced age of the average senator.

Either way -- through requiring 41 "nay" votes to be present or by applying the three-fifths ratio to the total of those present -- would have meant the "1/6 Commission" would now be reality and the squabbling would have begun over who would be named to it.

These two fixes (either one of them, really) would be only modest reforms of the filibuster rule. As such, they might be deemed acceptable to Senators Joe Manchin, Kyrsten Sinema, and any other Democrats quietly opposed to outright elimination of the legislative filibuster. After all, the three-fifths ratio would be preserved. It would just be applied differently, in practical terms.

This reform wouldn't allow President Joe Biden's entire agenda to advance willy-nilly, either -- which might be the biggest selling point for Manchin, Sinema, and anyone else. Such reforms would not mean that big agenda items such as raising the minimum wage to $15 an hour or passing voting rights reforms could automatically move to the final vote. It's hard to see any Republicans voting for either of these measures, and these are just the two which first popped into my mind. So these reforms might not be enough, in the end.

But maybe -- just maybe -- they'd be a serious shot across the bow of the Republican Party. "Look, we're going to take a baby step first, but if that doesn't improve the situation enough, we may well eliminate the filibuster altogether," would be the Democrats' warning message.

Even the possibility of that being enough certainly seems worth taking that shot.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


12 Comments on “Two Filibuster Reforms Worth Considering”

  1. [1] 
    John M from Ct. wrote:

    I've been hearing about these "nibble round the edges" reforms of the filibuster for the past month or two. They've replaced the "make 'em work for it again" reforms involving a return to continuous speaking that were all the rage earlier in the spring.

    In all cases the discussion of potential reforms are addressed to two senators, and two senators only. All the Poli Sci chatter that dresses these discussions up ("it's still 3/5's, just a different 3/5's! That would be OK with *THEM*, wouldn't it?" "Maybe?") is just filler - in the end, it's going to be up to Schumer to crack the puzzle. And maybe he'll find a third or fourth approach to "reforming" the filibuster, as opposed to just outright abolishing it.

    The one I like, and maybe others whose voices, votes, and opinions don't count in the Chuck-vs-Joe&Kristen debate, is the abolition, outright. (Please, don't say abolishment when abolition will do. Brevity = clarity)

    Here's my thinking: the traditional reason for not just abolishing the practice, argued to the Dems, is, Oh NO! Wait til the Republicans get back in charge! Then you won't be able to use the filibuster to stop them from passing all their hateful legislation! Save it, save the filibuster, for when you need it for defense. Even if, for that reason, you have no offense whatever when you actually win the elections.

    It doesn't make sense. The point of getting rid of the filibuster is to get back to majority rule, as you say above. And if the Senate majority, filibuster-free, can pass any legislation it likes (assuming the House and Prez are on board, of course), then that's because the majority of the people voted for its representatives to pass that legislation.

    But, but ... the Republican legislation will be so awful - so hateful! How can we let that happen? Um... if it's that awful then the people will hate it too, and throw the bums out in subsequent elections.

    Kind of like all the talk around here about how, if only Biden and the gang could actually pass its programs through the Senate THIS YEAR because the filibuster is gone, those programs wouldl win the hearts and minds of the American people, and the Dems would be returned to office for once, rather than being thrown out - again - for failing to ever pass any decent laws when they're in office. Because of the filibuster.

    Since I happen to believe the American people, in a working majority, actually like the Dems approach to politics better, I'm willing to risk the Republicans passing a bunch of bum laws that will piss everyone off in 2029, in return for the Dems passing a bunch of fine laws that will make everyone happy in 2022 and 2023.

    Get rid of the filibuster. It only helps the Republicans. It never helps the Democrats.

  2. [2] 
    MtnCaddy wrote:


    Bingo! Hit the nail on the head. I'm glad that I read your comment before I responded myself as I'd have been redundant. And redundant is a Pope Don the Irrelevant's thing, not mine.

    The Repugs are famous for squawking about Our Sacred Constitution written as though by the Hand of God, Almighty.

    The reason there's no Filibuster concept in there is because, um...lemme think a moment...aha! Because they didn't want it in there, hello?

    C'mon, they rigged up the Senate to protect minority rights [slave State's rights, in other words] and freaking counted 60% of the [non-voting & definitely not created equal] slave population to to augment the Evildoer's power. What is the point of retaining such folly?

    (calms down and wipes up the spittle)

    Enough! Let each side do what they do when the People give them a turn. Let the People see which they like better and vote accordingly. Rinse and repeat, and you've got a functioning Constitutional Republic.

    You know all the whack jobs in the GQP? Inaction (cue "Filibuster!") protects the Repugs.

    FOR THE RECORD, Joe and company are playing the Repugs like the Repugs played Obama back in the day. Make it look like you're trying to reach across the aisle, and then, bam! Do whatever the hell you wanted to do in the first place. Payback is a mother...

    I think Manchin's & Sinema's public reticence/foot dragging makes sense if you picture them running on some variation of, "I was a BULWARK against my Party's excesses!"

    Yep, until he proves otherwise Joe is surely guilty of Practicing Effective Politics.

  3. [3] 
    MtnCaddy wrote:

    Elizabeth -- Hosanna, Board Mother, Hosanna in the Highest!

    Here's a couple Sunday Night "You, too, can be a DJ" theme suggestions:

    1- Anything pre-1960

    2- Anything post-2000 (or -2010 or even -2020!)

    3- British Invasion, natch.

    4- Anything NOT FROM USA OR CANADA.

  4. [4] 
    MtnCaddy wrote:


    Remember the Fallen, yes, of course. But otherwise

    Phooey on our National Anthem! Let's toss this monstrosity and instead go with "America, the Beautiful."

    It's much easier to sing and since we're no longer doing
    Colonial Empires nor WWIII (one hopes***) something less militaristic seems more appropriate.

    America may continue to be everybody's distruptive Uncle at the [World's] Thanksgiving table but in the spirit of "fake it 'til you make it" we could start with a little rebranding.

    ***I strongly doubt that we're going to nuke ourselves into extinction. The reason I'm confident is that said Armageddon rich guys on all sides would lose everything that that makes it worth being rich. Greed is one of the most powerful allies one can have, amirite?

  5. [5] 
    MtnCaddy wrote:

    FPC (like weeks ago) in regards to Saint Liz Cheney,

    John M from Ct. wrote,

    Cheney may come back to haunt us all, but in this moment she has stood up for America when all of her colleagues have taken their stand against America.

    Agreed, and while I hate her politics I have to respect what she's doing here, both on principle and on her political acumen.

    Cheney, last seen practicing powerful political speech, isn't facing anything close to the end of her career. She sees that
    Trumpism will die, either because Trump dies or else because he'll be way too busy in court fighting for his freedom. Furthermore, he's simply done too much damage, folks are tired of his schtick and he got his Twitter/Facebook bullhorn taken away, so he's considerably de-fanged. For God's sake Trump motivated 80 million 'Muricans to vote for Joe Freaking Biden! A-yup! That's WRITING ON THE WALL.

    Cheney has nicely positioned herself for that inevitable post-Trump future.

    ONCE THE FEVER BREAKS, Cheney will check some important boxes:

    1- She was one of the lone honest adults in the GQP room.

    2- She fought the Big Lie back when it was hard.

    3- She was willing to (and in fact did) pay dearly for her honesty. This gives her a most authentic form of credibility.

    4- She's a female version of her tough father, so she has that Royal DNA thing going for her.

    The GQP will do Suburban Lady Voters a solid by keeping one of their top female (heck -- top anyone) talents.

    What's not to like?

  6. [6] 
    Don Harris wrote:

    "Get rid of the filibuster. It only helps the Republicans. It never helps the Democrats."

    Congratulations. That is firmly in the running for most ridiculous comment of the century.

    The filibuster is one of the many ways that Deathocrats use as an excuse to give in to Republikillers when Deathocrats are in control so they can fail to deliver on their campaign promises and use the at least we got some crumbs and we promise if you keep us in power in the next election cycle that we will keep our campaign promises then even though that has not happened in decades.

    It helps the Deathocrats do their jobs in the two party illusion.

    And it seems to do a really good job for the Deathocrats of fooling those in their half of the cult as evidenced by your comment.

  7. [7] 
    Don Harris wrote:

    There is a better way to eliminate the filibuster- eliminate the two party illusion and have multiple competitive parties and three, four or five parties and independents having elected representatives in the Senate.

    That doesn't need a Constitutional amendment either.

    All it needs is for people like you, CW, to stop promoting THE Big Lie that the one big money party is actually two parties.

    Even if that takes more than one election cycle to fully accomplish it will still be faster than waiting for the one big money party to eliminate the filibuster themselves as seems to work pretty good for them.

    You need to stop being their DUNGA DIM (carrying their moosepoop for them instead of water).

    Have you no shame?

    Are you totally devoid of integrity?

    Are you just one of the hypnotized?

    Wake up. Wise up. Rise up.

    Get Real.

    Get Credible.

    Your Lie's up.

    What is your major malfunction?

  8. [8] 
    nypoet22 wrote:


    i think the old-fashioned filibuster, a-la james stewart, should absolutely come back, and there's probably sufficient support for it doing so. however, both of your ideas would be quite good as addenda to that change.


  9. [9] 
    Mezzomamma wrote:

    Yes, choose all of the above, and make the so-and-sos have to work (for a change) for their attempts to stall and prevent legislation that the majority of the country wants.

  10. [10] 
    MtnCaddy wrote:

    From a post in Medium,

    Michael Flynn calling for a coup, in other words, isn’t something you should just forget about. It’s something you should pay attention to, and think about.

    Yep, them damned Repugs are saying Trump (32% Favorable v. 55% Unfavorable) will be "reinstalled" to the Presidency come 4 August. Set your watch haha!

  11. [11] 
    MtnCaddy wrote:

    That 32% is actually better than the 22% Approval rating of George W. Bush when he left office. And W didn't even get 500,000 Americans killed and (unlike Trump, who ended up with a net 3 million jobs lost in only 4 years) had a positive net job growth during his 8 years in office.

    I never thought I'd say this, but under Trump I missed the quiet, considered Statesmanship of George the Younger.*sigh*

  12. [12] 
    MtnCaddy wrote:


    ...ergo, W did a fraction of the damage to America, and closes at 22% approval rate.

    Whereas, #PutinsBitch let's a half million people die, loses 3 million jobs and... is still at 32%?

    "Patience, Grasshopper." I tell myself. "Give it time give it time give it time, November 2022 is eons away blah blah blah." Okay, but the 32% v. 22% thing cain't be a good thing.*obligatory smh*

    Whatever one thinks about Zuckerberg & the Twitter Magnates, taking Trump off the "air" is the BESTUS GIFT they could ever give planet Earth.

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