It was, on the surface, a routine political process: The U.S. House of Representatives sent a resolution to the Senate calling for establishment of a commission to investigate the Jan. 6 insurrection at the Capitol. The measure was placed on the Senate calendar, came to the floor and provoked passionate debate. In the end, the vote was 54-35 in favor, with support from both Democrats and Republicans.
But in technical terms, this was not a vote on the commission itself. Republicans had launched a filibuster on the resolution, and by Senate rules, 60 votes would be needed to break its hold. And so, although the resolution won by a wide margin, it failed.
While the insurrection posed an existential threat to American democracy, Berkeley political and legal scholars say the arcane workings of the filibuster pose a threat, too, because it increasingly is being used to block majority rule. Most often, Republicans are using it to freeze movement on popular issues related to economic fairness or racial justice.
“Filibusters are now more powerful, more common and less transparent than they have been at any time in history,” said law professor Catherine Fisk, who has written extensively about the procedure. “Today, senators representing less than 20% of Americans can — and do — block legislation favored by senators representing the other 80%.”
Adds political scientist Robert Van Houweling: “The filibuster is straightforwardly anti-majoritarian and anti-democratic.”
This arcane process, with its air of horse-and-buggy days gone by, has come into the headlines since President Joe Biden took office with the Senate split 50-50 between Democrats and Republicans. Biden brought an ambitious agenda to slow climate change, raise the minimum wage, increase taxes on wealthy Americans and bring new regulations on gun sales — all measures popular with American voters.
From the start, however, Republican leader Mitch McConnell of Kentucky made clear he would use the filibuster to block Biden’s agenda. Many analysts saw only one way forward: Democrats would have to vote as a unified bloc to end the filibuster, with Vice President Kamala Harris breaking the expected tie.
That hope was shattered in recent days when two Democratic senators — Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — made clear that they would not vote to change the rules. Now, as frustrated Democrats search for a way forward, the Berkeley scholars see some intriguing options for reforming the filibuster.
Which raises the core question: Are there real prospects for change?
Democracy aside, many senators like the filibuster
The filibuster is not in the U.S. Constitution, and it has never been reviewed by the U.S. Supreme Court. But the Senate has broad powers to create its own rules, and those rules have evolved over time. In middle of the 20th century, a senator who wanted to filibuster a bill had to stand in the Senate chamber and speak, sometimes for hours, hoping to stall until the other side capitulated. Today, such exertion is not required.
In an interview, Fisk argued that in any form, the procedure is unconstitutional.
The Constitution, she said, lists seven specific instances in which a supermajority vote — something more than a basic majority — is required: to amend the Constitution, for example, or to override the presidential veto of a bill, or to ratify a treaty. Further, it specifies that the vice president shall only vote in the Senate to break a tie.
“These textual requirements suggest the framers envisioned that majority rule would be the norm, except where otherwise provided,” she said.
And yet, Van Houweling sees a critical factor in the filibuster’s survival: It gives individual senators considerable power, and they use it for political advantage in ways that have little to do with today’s ideological warfare.
For example, he said, suppose the Democrats are advancing a bill that could be unpopular with moderates in both parties. And suppose a Democratic senator in a conservative state doesn’t want to cross-party leaders, but also doesn’t want to vote for the bill. If the Republicans filibuster, the Democrat doesn’t have to take a stand either way. The filibuster is a shield.
Another example: In the mid-1990s, Van Houweling worked on the staff of Sen.Tom Daschle, a South Dakota Democrat. A crop insurance bill was moving toward a vote and seemed likely to pass. But then another farm-state senator emerged, a Republican, and threatened a filibuster unless watermelons were included in the insurance plan.
In the arcane workings of crop insurance, there was no reason to include watermelons. But the votes of watermelon farmers were in play. Van Houweling recalled that Majority Leader George Mitchell (D-Maine) didn’t want the bill to get hung up and disrupt the flow of Senate business — so he urged Daschle’s office to negotiate.
Watermelons were added to the bill.
That may suggest why Manchin argues that the filibuster is essential for a healthy bipartisan environment. In theory, he’s correct: When a party has a narrow majority, and it needs to get to 60 votes to pass the Jan. 6 commission or a voting rights bill, the filibuster could encourage compromise.
But in today’s fiercely polarized politics, the Berkeley scholars said, McConnell and the Republicans don’t want compromise. They want to block Biden and the Democrats from any legislative success that could help them win elections in 2022 and 2024.
“It is now widely recognized that every piece of legislation must have 60 votes in the Senate,” Fisk said, because Republicans will filibuster even minor measures. “This is a radical departure from the first 175 years of American history when, at most, only a few pieces of legislation would be filibustered, and even then, most filibusters failed.”
Used this way, “the filibuster is an absolute veto for 41 senators,” said Eric Schickler, co-director of the Berkeley Institute for Governmental Studies. “Basically, it’s minority rule — and we equate democracy with majorities being able to make decisions.”
In a recent essay published in The Atlantic, Berkeley political scientist Paul Pierson and co-author Jacob S. Hacker of Yale University documented that the vast majority of Americans have no idea what the filibuster is or how it works. The fact that people don’t understand it, and aren’t paying close attention, allows Republicans to use the procedure to paralyze government — without repercussions.
A weapon against racial equality — and against democracy itself
Since the defeat of Trump last November, a number of Republican states have moved aggressively to tighten voting requirements and oversight. Advocates say the measures are needed to prevent fraud, but nationwide, a broad coalition of critics say the measures actually are designed to reduce voting, especially by people of color.
While Democrats in Congress have responded with legislation to check such efforts, their voting rights legislation will almost certainly by blocked by the filibuster.
That would be consistent with its history. “Until recent decades, the primary impact has been to stall progress on civil rights legislation,” said Van Houweling.
For much of the 20th century, southern segregationists used the procedure to thwart anti-lynching bills. Indeed, the longest filibuster on record came in 1957, when South Carolina Sen. Strom Thurmond talked for more than 24 hours in an unsuccessful effort to defeat a modest voting rights bill.
Today, Berkeley experts say, the power of the filibuster is rooted in deep structural biases in the Senate. Because each state gets two senators, no matter its population, that swings power strongly to rural states where small populations are mostly older, conservative and white.
Though a majority of Americans might favor improved voting rights or a $15 minimum wage, senators in these small states can consistently assemble enough Senate votes to block such measures through the filibuster.
That power is intensified when it is combined with gerrymandered congressional districts, vote suppression and other “stacking the deck” techniques to reduce the political power of people of color and to manipulate the democratic environment.
“I do think that, right now, the filibuster certainly is one of the obstacles standing in the way of policies to address the potential for democratic backsliding,” Schickler said.
Increasingly, the GOP seems willing and able to govern as a minority party, imposing its will on the majority, Pierson said, adding that the party “believes … it can maintain power or even build its power by strengthening counter-majoritarian institutions and relying on them.”
That is inherently undemocratic, the scholars said. “In a democracy, majority rule is the norm,” Fisk insisted. “In autocracies, a minority rules.”
Pierson was one of several Berkeley political science and law faculty who joined some 200 prominent U.S. scholars this month in signing a “statement of concern” warning that American democracy is “fundamentally at stake.”
“We urge members of Congress to do whatever is necessary — including suspending the filibuster — in order to pass national voting and election administration standards that both guarantee the vote to all Americans equally, and prevent state legislatures from manipulating the rules in order to manufacture the result they want,” the statement said. “History will judge what we do at this moment.”
Keep the filibuster — and make it more democratic
Short of ending the filibuster, Berkeley scholars cite a number of ideas for amending it.
One common proposal is to reinstate the old requirement that filibuster organizers have to be physically present and continually speaking for the hold to remain in effect. Or the voting requirements could be reversed, so that 41 senators would have to vote to keep the filibuster going — and all would have to remain on the Senate floor.
Another approach would set a sliding time frame: At the start of the filibuster, 60 votes would be needed to end it, but as days pass, the threshold would gradually be reduced.
One innovative proposal came from Jonathan Gould, a Berkeley Law professor whose research focuses on how law shapes politics. Writing recently in the Washington Post, he and his co-authors proposed to keep the filibuster, but to make it more democratic.
How would that work?
“We suggest allowing a simple majority of the Senate to invoke cloture and move to a final vote — but only when that majority of senators also represents a majority of the American people,” Gould explained in an interview. “A minority of senators could only filibuster when they represent a majority of the population.”
Gould said the rule change would break legislative gridlock without enabling minority rule.
The proposal “got a positive reaction from people who think about democracy reform,” he said. “The fact that an outside-the-box idea got a warm reception shows that there’s a hunger for new ideas and a real recognition that the status quo isn’t working.”
Like all reform ideas, it would require 51 votes, and right now that seems impossible. But Schickler and Pierson both suggested that a time for change might be on the horizon.
If Democrats pick up two or three Senate seats in 2022, Schickler said, that could tip the balance.
“As the parties become more polarized,” Pierson added, “and the stakes feel really high, at some point, some majority is going to want to do something that they can’t do without getting rid of the filibuster.
“I do believe that the days of the filibuster in its current form are numbered — though the number may be a fairly high one.”