Should the filibuster be scrapped?

The filibuster — a long-standing tool of the U.S. Senate, under its rules — has long been viewed by supporters as valuable, while opponents often view it as an obstruction.

In the current debate about voting to fund and, thus, reopen the federal government, senators from both parties have been deadlocked over simply doing so (Republicans’ position) or using the impasse to advance their favored, unrelated legislation (Democrats’ insistence).

Calls to end the filibuster — at least on matters like this — are growing. President Trump has long been in favor of ending it and has reinvoked his call to do so. Others, including Senate Majority Leader John Thune (R-South Dakota) and North Dakota’s two Republican U.S. Senators John Hoeven and Kevin Cramer have, so far, indicated opposition to doing so, preferring to keep the long-time Senate tradition in place.

Why have a filibuster?

Although not a part of the U.S. Constitution, the rule creating the long-standing tradition has its roots in principle and can be traced as far back as 1806, although it was not exercised until 1837. It traditionally required a Senator to simply continue speaking—often for hours on end—to prevent a vote on a bill, a practice highlighted by Jimmy Stewart’s performance in the classic movie “Mr. Smith Goes to Washington”, but that requirement was shelved long ago. 

There was no way to end longwinded debate until 1917 when the Senate adopted a rule which allows it to force a vote on an issue. Called “cloture”, it originally required a 2/3 majority vote but the Senate reduced the threshold in 1975 to 3/5, equalling 60 votes.

The idea of the differences in the operation and role of the Senate was rooted in the nation’s early distinctions as a republic, rather than a pure democracy.

Proponents of the filibuster have long prized the tradition as the Senate’s way to cool the passions of rapidly shifting public opinion, reflected in bills passed by the House, as we recently wrote.

The Founding Fathers, however, believed the Senate’s role in doing so was preserved by the extended length of their terms of office (6 years vs. 2 for the House) and by the fact that Senators were elected by state legislatures, not a popular vote, as they were for most of our history. 

That didn’t change until 1913, with the adoption of the Seventeenth Amendment.

Cracks in the wall

Both parties supported, respected and practiced the filibuster for most of the Senate’s history, but that changed in 2013 when then-Senate Majority Leader Harry Reid (D-Nevada) invoked the so-called “nuclear option” in order to speed approval of then-President Barack Obama’s cabinet nominees and lower court judicial nominations. Another crack in the wall preventing its erosion occurred in 2017 when then-Senate Majority Leader Mitch McConnell invoked it involving votes for the confirmation of Supreme Court nominees.

Resistance to its elimination may be weakening

Sen. Ron Johnson (R-Wisconsin) has reportedly reversed his stance on the issue. Calling a move to eliminate it “a naked power grab” just three years ago, he now supports the idea, according to a report in the Milwaukee Journal Sentinel. 

The handwriting on the wall motivating Republicans would appear to be the fear that Democrats, when they’re in the Senate majority, won’t think twice about crossing the line of Senate tradition (rooted, perhaps, in the seismic 2013 shift).

“We KNOW Democrats will nuke the filibuster as soon as they’re able to solidify their grip on power. We should act first in order to pass laws that benefit the AMERICAN people”

Johnson concluded in a comment he posted on X.

Support for its elimination is already bipartisan. According to the Journal Sentinel report, Johnson’s Senate colleague, Tammy Baldwin — a Democrat — also supports its demise. 

In the meantime, a few Democrats, such as Pennsylvania’s John Fetterman, have instead seen the wisdom of joining Republicans in simply voting for the bill to fund and reopen the government, with no strings attached. So far, however, their number has not been large enough to reach the 60-vote threshold. 

If the change occurs, elimination of the filibuster would likely not be complete It would probably simply be eliminated for votes such as this, as it was in the 2013 and 2017 examples.

We’ll be watching closely to see if the longest federal government shutdown in US history prompts the historic change.