Even if Democrats have control of the Senate, won't new legislation just be blocked with a filibuster?

Question

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?

Answer 1

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.

Answer 2

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.

Answer 3

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).

Answer 4

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.

Answer 5

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).

Answer 6

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.

Answer 7

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.