While Democrats hold a narrow majority in both chambers of Congress, there’s still one thing standing in the way of the Biden administration achieving its legislative goals: the Senate filibuster. While the filibuster has existed in some form for most of U.S. history, in recent years it’s evolved into a tool that makes congressional gridlock not only possible but, at times, a near certainty. Now with crises on multiple fronts, there are increasing calls to do away with the filibuster altogether in order to pass meaningful legislation — but that’s easier said than done. Norman J. Ornstein, an emeritus scholar at the American Enterprise Institute, explains how we got here and several alternative ways to make the filibuster work as originally intended.
NORMAN J. ORNSTEIN: Most parliamentary bodies have a rule that's called a motion for the previous question. That means all right, we've had the debate. We're going to stop. Now we'll vote.
The Senate had one, just as the House did, at the beginning of our republic. But in 1805, they took out the motion on the previous question. What that meant was there was nothing in the Senate rules that would enable you to take a majority vote, stop, and just vote on whatever the issue was.
Now, it didn't matter much until we hit a crisis point in 1917. It looked like we were going to end up going into World War I. But there were some senators who didn't want to do it. And what they discovered was that if five of them just did a kind of tag team, one of them took the Senate floor, and as long as that person kept talking you could yield to another senator who could hold the floor, and then to another. And the five of them could go for weeks.
And after they finally broke this filibuster, they created a rule that you could stop the debate and move forward, but not by a simple majority, by a supermajority. Now, it turns out that even after this rule, it wasn't used very often. You didn't have a lot of senators in the minority who said, OK, this is so important to us that we're going to keep the Senate from moving forward--
- Somebody will listen to me. (WEAKLY) Somebody--
NORMAN J. ORNSTEIN: --until we hit the era of the 1950s. As Democrats wanted to enact civil rights bills, segregationists used the filibuster to block those actions. Eventually, of course, we know the story. Those filibusters were broken, with Democrats and Republicans overcoming them. And then we went back to very rarely seeing filibusters used.
The second thing that happened, which was critical, was another rules change in 1975. And they move from 2/3 of those present and voting to 3/5 of the entire Senate. Now, that seems like it's lowering the threshold. And that's what much of the commentary has said.
But they made a mistake, because when you move from those present and voting to the entire body, you shift the burden from the minority to the majority, because it's the majority that has to come up with 60 votes. So if you say we're going to go around the clock, 24/7, the minority can say good luck with that. We'll have a couple of people stick around. And you can call votes any time you want. We don't have to be there.
So that changed the dynamic. And that dynamic now plays out with Joe Biden as president. And if the Republicans unite, voting rights, gun bills, climate change, health reform-- most of that is blocked. And that's why we're getting this outcry to reform the filibuster yet again.
What they have to do is find something that puts the burden back on the minority, where it was for so long, makes it a reasonably heavy burden, but also provides an opening or opportunity as a least for a majority ultimately to be able to prevail. However, you're going to need all 50 Democrats in the Senate to be able to find a way to change the rules. And right now, they certainly don't have 50 to eliminate the filibuster.
So here are three ways you could make a change otherwise. One is simply returning to a present and voting standard, that of absolutely 60, it's 60 of those present and voting. So then if Democrats went around the clock and 20 Republicans didn't show up, you'd only need 48 votes, 3/5 of the 80.
A second is to lower the threshold. Move it to 55. That wouldn't work well now, because there are only 50 Democrats. But you could add to the burden.
The third way, one that I've promoted for a number of years, is you shift the burden by saying it doesn't take 60 to stop the debate and move forward. It takes 41 to continue the debate. And if at any time when you call a vote they don't get 41, then you can move forward and add. All of those things are under consideration now by Democrats seeking to find a way to alter the rule, understanding they can't abolish it.