About the Filibuster

A filibuster is any “attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”  U.S Senate website

To better understand the filibuster, it’s necessary to understand how the Senate passes a bill. When a senator or a group of Senators introduces a new bill, it goes to the appropriate committee for discussion, hearings, and amendments. If a majority of that committee votes in favor of it, the bill moves to the Senate floor for debate. (Brennan Center) 

Once a bill gets to a vote on the Senate floor, it requires a simple majority of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actually takes 60 votes to end debate. This is why a 60-vote supermajority is now considered the de facto minimum for passing legislation in the Senate.

The filibuster has a troubling legacy: It has often been used to block civil rights legislation intended to combat racial discrimination. During the 20th century, the filibuster was used to:

• Protect the interests of Southern white landowners who depended on slave labor;
• Block legislations such as anti-lynching bills;
• Block The Civil Rights Act of 1957;
• Prevent legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing and voting;
• And more!

“Of the 30 measures that were derailed by the filibuster between 1917 and 1994, exactly half of them involved civil rights.” (Brennan Center)

We’re seeing the filibuster being used to prevent progress to this day. Why hasn’t an immigration overhaul been enacted? Filibuster. Why was President Barack Obama unable to enact climate change legislation? Filibuster. Why can’t we pass a voting rights bill? You guessed it! Filibuster.

Filibuster abuse threatens checks and balances between the branches of government. Often resulting in a stalemate in Congress, filibuster use has pushed Presidents to use their executive power to get things done, which in turn often goes unchecked because of Congress’s inability to act.

Ongoing deadlock on certain issues has led to the use of the budget reconciliation rules to avoid hurdles caused by the filibuster. However, these rules were intended to expedite Congress’ budget process, not circumvent the filibuster, and many experts argue that due to its limited scope, the budget reconciliation process is not designed to handle the sweeping scale of legislation it is currently being used to pass. (Brennan Center)

Yes. The following are just a few exceptions and only require a simple majority of 51 votes and/or cannot be filibustered:

• Confirmation of executive branch positions, including the cabinet and non-Supreme Court judicial nominees
• Supreme Court appointments
• Congress’ annual budget reconciliation process
• Trade agreements that are negotiated using fast-track rules

In total, 161 exceptions to the filibuster’s supermajority requirement of 60 votes have been created between 1969 and 2014.

As Senate gridlock persists, calls for eliminating the filibuster altogether have grown louder, especially given its history of perpetuating Jim Crow laws and being used to undermine passage of civil rights legislation and voting reforms. Changing the Senate rules would be the easiest way to eliminate the filibuster, but such a change would require a two-thirds supermajority. Another way to get rid of the filibuster would be to use what’s referred to as ‘the nuclear option’. Under this method, the Senate majority leader would use a non-debatable motion to bring a bill for a vote and then raise a point of order that ends debate and invokes a vote by a simple majority.

Some advocates argue that voting rights legislation, like the For the People Act, warrants an exemption from the filibuster, even if the procedure is not eliminated altogether. Noting that there already exists a number of exceptions to the filibuster, Stacey Abrams, voting rights champion and former minority leader in the Georgia House of Representatives, argues, “Protection of democracy is so fundamental that it should be exempt from the filibuster rules.”

Check out some of these additional resources:

• The Case Against the Filibuster by Caroline Frederickson (October 2020)
• Time to Deal with the Filibuster by Michael Waldman (January 2021)
• Curbing Filibuster Abuse by Mimi Murray Digby Marziani, Jonathan Backer, and Diana Kasdan (November 2012)