25

According to Wikipedia:

Filibuster is a tactic used in the United States Senate to prevent a measure from being brought to a vote by means of obstruction. The most common form occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (currently 60 out of 100) vote to bring the debate to a close by invoking cloture under Senate Rule XXII.

Assuming that 60 out of 100 senators will never agree on the same thing, won't new legislation proposed by the Democrats be blocked in the senate by Republicans? If so, what is the point of gaining control of the senate?

3
  • 3
    One thing that is not mentioned in any of the answers is that Presidential nominations for cabinet level and judiciary positions do not require a 3/5 majority, thanks to uses of the nuclear option in 2013 by the Democrats and in 2017 by the Republicans. – David Hammen Jan 7 at 12:29
  • 21
    Turn this question around and ask yourself - how was any legislation able to get passed when there was Republican control of the senate? – Zibbobz Jan 7 at 14:14
  • Also consider that Senate Republicans turned out (by and large) not the most fervent Trump supporters, especially in the matter of his election fraud claims. By your "hardball" theory, they could have opposed the election results for days, objecting to every single state, and taking 2hrs of debates for each, but did practically none of that (except for AZ). – Fizz Jan 10 at 0:02
44

In the Senate, there is the so-called "Nuclear Option" that permits the rules of the Senate to be changed with a simple majority. These rules include the 60-vote rule to close debate, which functionally ends a filibuster. In recent memory the Nuclear Option was employed to end filibusters of judicial appointments of the Democrat controlled Senate in 2013 and the Supreme Court nomination of the Republican controlled Senate in 2017.

With control of 50 Senate seats, and a tie-breaking vote cast by future Vice President Harris, Democrats theoretically have the 51 votes necessary to employ the Nuclear Option and shut down filibusters.

5
  • Sure in theory but there's absolutely no real chance of it actually happening, as Manchin has already pointed out. And even though he can scuttle it alone, the even bigger obstacle would be Biden who has also stated strong objections. – eps Jan 7 at 5:01
  • 40
    @eps - People may say they oppose doing it now, but when it actually starts interfering with major legislation or appointments, their opinion may change. – Bobson Jan 7 at 5:39
  • 3
    @eps Biden doesn't have a say in the rules of the Senate. Unlike laws and resolutions which are subject to Presidential approval, the Senate's own rules are decided by the Senate alone. – Andrew Ray Jan 7 at 19:16
  • 21
    The mere threat of the Nuclear Option will hopefully discourage the overuse of filibusters. If Republicans filibuster absolutely everything, the Democrats will be forced to use the Nuclear Option just to get anything done, removing the filibuster from the Republicans' toolkit. But if the Republicans only filibuster truly contentious issues, the Democrats will be less inclined to use the Nuclear Option since they want the filibuster to still be available next time they lose the Senate. – BenM Jan 7 at 21:04
  • 6
    @AndrewRay Biden may not have any Constitutionally-derived powers in the Senate, but he's still the president, and he has a lot of sway within the Democratic party. He absolutely has a say in what the Senate does. – Chris Hayes Jan 7 at 21:50
27

Assuming that 60 out of 100 senators will never agree on the same thing...

That's a huge assumption, which is to say that it is unrealistic. There are lots of things that will not attract the agreement of 60 or more senators, but there are other things that will, such as bills that enable government to function. And there will be things that don't have the support of 60 senators but that nobody chooses to filibuster.

If this were not true then no law would ever pass unless one party managed to secure a 3/5 supermajority, which is not that common.

what is the point of gaining control of the senate?

The majority leader basically sets the agenda. The majority also has preferential status in committee, since committees are chaired by members of the majority.

7
  • Could you provide examples of bills that are not required by the government to function and were successfully voted on without a filibuster? – mhdadk Jan 6 at 17:37
  • 3
    @mhdadk: Going back a few decades, but how about the declaration of war against Japan after Pearl Harbor. Passed the Senate unanimously. Or more recently, the first pandemic relief bill passed this past March: nytimes.com/2020/03/28/us/senate-coronavirus-stimulus-bill.html – jamesqf Jan 6 at 18:08
  • 9
    @mhdadk filibuster is by far the exception, not the rule. The Wikipedia article gives a good overview, but it's not at all unusual for a bill to pass with fewer than 60 votes in favor. – phoog Jan 6 at 18:20
  • 3
    @mhdadk The Tax Cuts and Jobs Act ["Trump Tax Cuts"] was not able to be filibustered, among other things (passed 51-48). – Joe Jan 6 at 20:54
  • 1
    @mhdadk you can search the Senate website for votes on bills. There certainly aren't many. But, for instance, it appears that in 2020, the USA FREEDOM Reauthorization Act (H.R.6172) passed 80-16, the CARES Act (H.R.748) passed 96-0, and the United States-Mexico-Canada Agreement Implementation Act (H.R.5430) passed 89-10. Maybe there are some operational riders in some of these bills but none of their central purposes seem to be necessary for government to function. – Will Jan 8 at 12:10
17

One thing they will be able to do is repeal regulations that have been finalized by the Trump administration in the last few months (many of which were rushed to completion during the lame-duck period). The Biden administration could put out new regulations to repeal the Trump administration's regulations, but they would have to go through the arduous regulatory process, involving a proposed rule, a comment period, and response to comments, and then a final rule, which sometimes can take years. The Congressional Review Act allows Congress (both houses of Congress and the President to sign it) to repeal a regulation within 60 "legislative days" (not calendar days) of the final regulation being issued, and this cannot be filibustered. This is a much faster way to stop the previous president's 11th hour regulations when the new President's party has a majority in both houses of Congress (even if just 50 votes + the Vice President in the Senate).

15

Control of the Senate controls the agenda. Examples:

  1. Nominations for positions and judges. In controlling the Senate agenda, The Republican majority leader took no action on a Supreme Court nominee by a Democratic president for 11 months. Never got a vote. The same majority leader managed to get a Republican president's nominee through in about 3 weeks. Due to changes first by DEMS and then by GOP, the filibuster does not count for nominations, judges, and most recently Supreme Court justices. they still need the majority vote, but they need to get to the floor first.

  2. Reconciliation- Certain bills that relate to spending don't have to clear the filibuster. There are ways to make a lot of things fit into that.

Again, setting what is brought up in committee and to the floor for a vote is a big deal itself. Ultimately with a small majority they need to keep everyone from their side or get votes from the other side. Recently all eyes were on 2-4 GOP Senators who might "defect". Now it will be on a few DEM Senators.

14

Even without eliminating the filibuster, quite a lot of legislation can be passed through Reconciliation, which requires only a simple majority (50+VP) to pass. While this is, in theory, only intended for budget items, it has historically been used at other times to pass things that wouldn't normally be considered part of the regular budget, such as the failed Obamacare repeal (which failed, not because of a 60 Senator limit, but because fifty Senators did not support it.).

Some of the things Biden could pass through Reconciliation are discussed in this NY Magazine article, such as:

  • Stimulus checks
  • Obamacare subsidies

They could even, in theory, pass a Public Option through Reconciliation; however, there is a major limit: the Byrd Rule, which attempts to limit this; the Senate is able to work around it through passing time-limited laws (this is why, for example, the Tax Cuts and Jobs Act is not indefinite, but ends after 2025). The Senate Parlimentarian can strike parts of the bill for violating this rule (and did in the aforementioned Tax Cuts and Jobs Act).

0

A lot could be done to end the filibuster if it actually worked like it used to and would force the senate to deal with the issue. However now the filibuster just kills a bill without the need to actually filibuster it. The problem is that anymore bills don't get a filibuster but rather threatened to get one which ends up being the same.

https://www.theatlantic.com/politics/archive/2012/04/how-the-modern-faux-filibuster-came-to-be/255374/

Of course the problem is that the Senate mis-used its powers under Art. I, §5, cl., 2 to "determine the rules of its proceedings" when Mike Mansfield allowed tracking such that two items of legislation could be on the floor at the same time and one could be filibustered without stopping the entire proceedings. And since a two-thirds votes is necessary, under Senate rules, to change Senate rules, this problem will be around for awhile.

Note for the young: Mike Mansfield (right), a Democrat of Montana, was the Senate's majority leader at the time. In the post-Watergate mood of cleaning up Washington and reforming the government's baroque ways, the change in "Rule 22," which governed the filibuster, was thought to be progressive. After all, 60 Senators, rather than 67, seemed a more reasonable threshold for breaking a filibuster; and the "two-track" system meant that the Senate's business wouldn't grind entirely to a halt just because one issue couldn't be resolved. The rules haven't changed since 1975, despite several short-lived feints -- but the norms have changed in the past few years, so that the 60-vote filibuster threat is applied to practically any proposal or nomination of significance. Even nominees who are eventually approved by the Senate by 90-10 or 85-15 margins are often filibustered, just to slow things down.

-2

There is a great deal of legislation that receives bipartisan support. IF the Democrats are sensible they will focus on what they can do that will get such support.

If they fail to do that (e.g. by focusing on the extreme views at the fringes of their own party), they will simply be setting themselves up for defeats in future elections, just as the Republicans set themselves up for defeats by supporting the Trumpistas' agenda. Most of the electorate is firmly middle-of-the-road, and in the long run tends to vote out extremists of either party.

3
  • I edited your answer. I tried to remove the more inflammatory parts, while hoping to preserve what I perceived as the spirit. – Jared Smith Jan 9 at 22:42
  • @Jared Smith: I honestly can't see that there was anything inflammatory, or even more than mildly controversial, in the original. – jamesqf Jan 10 at 21:24
  • Such is the state of the nation. – Jasen Jan 28 at 12:51

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .