By Dr. Stephen Schwalbe
Program Director, Political Science at American Public University
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President Trump still has no significant legislative victories since he took office in January. One major stumbling block that he sees to any victories in the near future is the Senate filibuster.
It takes 60 votes in the 100-member Senate to end a filibuster and bring most bills to a floor vote. Since taking office, Trump has repeatedly tweeted his desire to see the Senate scrap the filibuster altogether.
In May 2017, Trump tweeted, “The U.S. Senate should switch to 51 votes, immediately, and get Healthcare and TAX CUTS approved, fast and easy. Dems would do it, no doubt!”
Neither Political Party Favors Doing Away with the Filibuster
Neither political party in the Senate has ever proposed eliminating the filibuster just to get legislation passed. So there is much room for doubting Trump’s claim that Republicans and Democrats would ever agree to such a change.
The filibuster – defined as an action that prevents a bill in the Senate from achieving a floor vote – has been around since the beginning of the United States.
The filibuster is not specifically mentioned in the Constitution. However, the Constitution does allow the two chambers of Congress to set “rules and proceedings,” based on a simple majority vote. Early on, the Senate voted to institute the filibuster to protect minority party interests.
“Historically, members of the Senate did not make extensive use of the filibuster, except on rare occasions involving select issues which divided the nation in terms of region and party,” wrote Dr. Jess Brown, professor emeritus at Athens State University. “Examples include the prospect of a national bank, and issues such as slavery, civil rights and war.”
A Filibuster Once Required a Senator to Speak as Long as Possible to Prevent a Vote
The filibuster once required a senator to pontificate on the Senate floor for as long as he or she wanted (allowing for bathroom breaks). That speech-making usually meant that no other voting could take place in the Senate while the filibuster was underway.
Strom Thurmond (R-SC) delivered the longest filibuster speech in the Senate’s history. He spoke for just over 24 hours in an unsuccessful attempt to block the passage of the Civil Rights Act of 1957.
Eventually, the Senate filibuster morphed into a simple notification of intent to filibuster with no requirement to actually take the Senate floor (unless a senator wanted to gain media attention) and speak indefinitely. A filibuster can only be ended by a “cloture” vote. It takes 60 of the 100 senators to vote to invoke cloture.
In 1970, the Senate adopted a rule allowing for a two-track filibuster wherein a filibuster on a bill or nomination would not stop other business or voting in the Senate from occurring.
Also in the 1970s, a problem became evident with the filibuster. Federal budget bills needed to be passed to keep the government running. To prevent either political party from holding the other party hostage by threatening a filibuster over the budget bill, Congress passed the Budget Impoundment and Control Act in 1974.
That legislation required “reconciliation” on budget bills. All budget bills are now passed by a simple majority floor vote in both chambers of Congress (51 yeas in the Senate), thereby negating the Senate filibuster.
During times of unified party control of Congress, the majority party has attempted with varying degrees of success to enact its major policy priorities through the budget reconciliation process. But that reconciliation resulted in legislation constrained by budget rules.
Senate Added Changes to Filibuster Rules in 2013 and 2017
Recently, the Senate made two significant changes to the Senate filibuster. In 2013, the Democratic-controlled Senate changed the rules to prohibit filibusters on presidential nominations for executive branch positions or for federal court judgeships. At the time of the vote, there were 59 Obama administration executive branch nominees and 17 judicial nominees awaiting confirmation.
In 2017, with a Republican majority in the Senate, the Senate changed the rules and banned filibusters for presidential nominees to the Supreme Court. That rule change negated a planned Democratic filibuster of Trump’s Supreme Court nominee, Neil Gorsuch, who was subsequently confirmed by a vote of 54-45 (which would not have been enough if the filibuster was still in effect).
With the momentum of these recent changes to the filibuster, President Trump has asked the Senate to do away with the filibuster completely. That change is unlikely to happen.
The Filibuster Protects the Minority against the ‘Tyranny of the Majority’
What is the real significance of the filibuster? It is the only mechanism in place in either chamber that protects the minority party position on issues to any degree. Otherwise, the “tyranny of the majority” would have been in effect from the beginning.
James Madison, author of the Constitution and our fourth president, wrote in Federalist Paper #51 that the new republican government needed to ensure checks on the power of “factions” (e.g., special interest groups and political parties). The filibuster is the most prevalent of these checks that Madison said were needed to prevent the domination of factions.
Senate Majority Leader Mitch McConnell (R-KY) has made it clear to President Trump and to the American people that the Senate has no intention of eliminating the filibuster as it stands today. It remains one of the significant differences between the House of Representatives and the Senate. The filibuster is a mechanism that has served both political parties well over the long run and should not be discarded for political expediency now.
About the Author
Dr. Stephen Schwalbe is an associate professor at American Public University. He is also an adjunct professor at Columbia College and Embry-Riddle Aeronautical University. Stephen received a Ph.D. in Public Administration and Public Policy from Auburn University in 2006.