Comment: Filibuster showing cracks but could prove resilient

By Jonathan Bernstein / Bloomberg Opinion

Is the Senate legislative filibuster — the ability of the minority to require 60 votes in order to pass most legislation — on its way out?

President Biden has now endorsed new exceptions to what can be filibustered in hopes of passing the Democrats’ voting rights agenda. It appears that an upcoming Senate vote on that exception will fall short, but Democrats are still trying to convince their two likely holdouts, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, and perhaps others, to vote with the party on the change in Senate procedures that would allow a final vote on two bills aimed at countering state efforts to impose voting restrictions and potentially change vote-counting practices. Even if it survives this vote, it seems only a matter of time until the filibuster as we know it is eliminated.

The data journalist Nate Silver thinks so. “My hot take is that the filibuster mostly doesn’t exist anymore, in the sense that it’s been so weakened as a norm that going forward, it won’t significantly constrain action that parties would strongly want to take anyway,” he tweeted on Wednesday, adding, “Maybe Manchin on voting rights is an exception.”

Silver took a fair amount of grief from Congress scholars and partisan Democrats for that one, and fair enough. The filibuster remains very much alive, and will have a lot of impact as long as that’s the case. But let’s give Silver a generous reading. One thing that’s certainly true is that any distinction between opposing legislation and supporting a filibuster against it has been breaking down for years and has been completely gone since 2009. Virtually no senator since then has indicated both opposition to a bill and the intention to vote to end a filibuster before then voting against final passage.

Silver would be correct if it were also true that senators saw no difference between supporting a bill and changing Senate procedures, chipping away at or eliminating the filibuster altogether, in order to pass the bill. There’s no doubt that support for the Senate’s rule requiring 60 votes to end debate on matters being filibustered, the procedure it calls cloture — that is, support for the filibuster separate from any immediate advantage or disadvantage it brings — has eroded quite a bit. But I don’t think it’s gone.

While mid-20th-century Southern Democrats supported the filibuster for decades because they wanted to obstruct civil rights and voting rights legislation — the history of the filibuster is without doubt tied closely to white supremacy — that was never the only reason senators liked the ability to block something by speaking indefinitely or threatening to do so, and after 1965 it was the other reasons that sustained what at one point was a functional use of the procedure. The filibuster empowered individual senators, giving them leverage to fight for things of particular interest to their state, or perhaps of intense interest to that lone senator or a small group of colleagues.

But today’s senators are far less interested in their states than they are in the overall party agenda, and while individual senators still use the leverage the rules give them to pursue narrow interests, the Senate is dominated by the use of the filibuster by the minority party against a majority that is mainly interested in passing its own agenda. Increased partisan polarization has also made the filibuster especially helpful to moderate liberals and moderate conservatives, who, in any closely divided Senate, wind up under heavy pressure to vote with their parties on items that they are less than enthusiastic about. The filibuster keeps those items off the Senate floor since there aren’t 60 votes needed to reach cloture, and majorities rarely bother bringing up items destined to fail; thus allowing Senators to duck tough votes.

The flaw in all of this is that activists and party-aligned interest groups, who have little reason to support the filibuster, have come to expect that anyone who supports a bill that has 51 votes but not 60 will also support changing Senate procedures to allow that bill to pass. And many senators, thinking more as partisans whose agenda is being blocked than as individuals representing states with particular interests, have come to agree. Those who don’t, such as Manchin and Sinema and perhaps others, come under intense party pressure to conform. And because most senators in the minority party also think of the filibuster as a partisan weapon rather than as a tool to empower individual senators, they are happy to go along with increased partisan use of the procedure.

All of this suggests that the filibuster is on its last legs. But it could stick around, in whole or in part, for quite awhile. The partisan filibuster mainly matters during times of unified party government; without it, the two parties have to agree on anything that passes, and that means 60 votes in the Senate aren’t usually a key obstacle. So the real pressure to change procedures happens in Congresses such as the present one, where one party has the White House and majorities in both chambers. And there’s still enough interest in retaining the advantages of the filibuster that it will probably take a larger majority than the tiny one the Democrats currently hold (a 50-50 Senate with the vice-president breaking ties). Moreover, the current debate over a carve-out for only certain topics suggests that even when the filibuster starts disappearing, it may be dismantled piece by piece rather than all at once. In other words, it’s possible to imagine the filibuster disappearing in weeks, or over a decade or more.

And meanwhile, while it is even partially in place, the rules governing it, including the exceptions and workarounds that have evolved over the years, have all sorts of significant effects on what can pass and how those laws are structured. So, yes, the filibuster still exists, both because many senators still do care at least somewhat about their individual influence, but also because the filibuster can help majorities govern. But it appears doomed because neither Democrats nor Republicans seem to care enough about those things to work out a more stable compromise. So we may be stuck, for now, with a 60-vote Senate that makes no sense to anyone.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.