The filibuster often becomes the focus when one party or the other fails to push through something “urgent,” but it is then left intact and forgotten once the urgency passes.
The Senate – and particularly Democrats – should take advantage of this moment to become once again the world’s “greatest deliberative body,” as reality is, the Senate now avoids discussing some of the most controversial issues. This failure to talk — and let the American public hear — reinforces our deepening partisan divide. Changing filibuster rules in this era of 24/7 media and citizen coverage might help to reverse that development.
Historically, the filibuster required a senator to keep talking to delay a vote. The Senate changed its rules in 1972 to move away from a talking filibuster, and senators can now prevent a vote without even speaking on the Senate floor — and even prevent discussion in most circumstances. The “filibuster” can only be stopped by a vote of a super-majority of senators (now 60), known as “cloture.”
Following the elimination of the talking filibuster, use of the filibuster exploded with opposition to even non-controversial legislation. In the 50 years before 1972, there were never more than seven votes on cloture in a two-year Congress. Since 2013, there have never been less than 100, reaching a high of 298 in the 2019-2020 term. Two hundred seventy cloture votes were successful, so many “filibusters” seemed frivolous to both parties.
Today, whenever a near-even split in the Senate makes getting to 60 votes impossible, the majority party talks about eliminating the filibuster. Although rules have been modified to permit ongoing essential functioning of the government, including adopting certain budget measures and confirming key presidential appointments, some form of filibuster appears here to stay.
The filibuster is understandably frustrating to the majority party, but its use to ensure some degree of consensus has advantages. Flip-flops with each change of party, controlled by a bare majority, might lead to short-term euphoria but encourage a lack of consistency in policy. The threat of the filibuster has vexed Democrats regarding voting and other civil rights but has also provided them with protection for the environment, healthcare, and social welfare programs when Republicans are in control.
History suggests the filibuster might benefit Democrats, as Republicans have controlled the presidency, Senate and House for four terms (2001-07 and 2017-19) and Democrats only two terms (2009-11) and currently. Also, Republicans have not controlled over 60 Senate seats since Theodore Roosevelt (1909), while Democrats have had such control quite often, most recently in 2009-10.
But perhaps the bigger concern — for Democrats and the country as a whole — is that neither eliminating the filibuster nor maintaining it in its current form solves or even addresses our more pervasive problems: partisanship and extremism. Eliminating the filibuster would merely allow and encourage decisions to be made with 50 senators, likely leading to even less discussion and negotiation across party lines, even in those areas where bipartisan discussion and action might prove possible. And the current non-speaking filibuster encourages no discussion.
The Senate should modify the rules to return to a “speaking filibuster” and encourage more debate rather than less. Eliminate the ability of either party to prevent discussion. Require continuous discussion to relate to the subject at issue. Allow for interruptions to discuss the points raised and allow amendments related to the legislation. Allow senators to challenge false narratives and highlight facts. These changes might not directly eliminate minority obstruction of legislation, but they would encourage senators to articulate — and hear — all positions.
Perhaps more importantly, by exposing debate to the public, a talking filibuster might also lead to substantive change in a world much different than the pre-internet and social media world that existed before the filibuster went “silent” in the 1970s. Senators forced to articulate views won’t be able to hide behind their favorite cable news channel when their constituents get to see and hear their presentations — and the points made in opposition. Many procedural and substantive positions traditionally taken in filibuster have been opposed by most of the American public. We should trust that our voters are smart enough to understand, challenge and change their senators’ positions — or change the senators articulating them. Sunlight is always the best disinfectant.
Moving to a talking filibuster will not provide quick and easy solutions, but maybe that’s not what’s needed. It took years to reach our bipartisan chasm. Let’s do everything we can to start the process of ending it.
Andy Schatz is an attorney who has served as president of the American Civil Liberties Union of Connecticut and on the national ACLU board and executive committee. He is a member of the Commission on Social Action of Reform Judaism. This is his personal view and does not represent the views of any organization.