Filibuster Fight Goes Another Round

Josh Huder | February 2, 2022

According to the headlines, last week Majority Leader Chuck Schumer forced the Senate to vote on a potential change to the Senate filibuster. In actuality, Schumer did something very different. What was nominally aimed at reforming the filibuster was actually an attempt to limit all senators’ rights under the rules to consider a single piece of legislation. The attempt failed, but it sheds light on the type of politics that a filibuster-less Senate will offer.

Not Present at the Inception: A Longer View of Filibuster History

The Senate has a long tradition of unlimited debate. This tradition, however, is not rooted in the Constitution. In fact, there is lots of evidence the Framers were against supermajority requirements for legislation.  Instead, the emergence of “unlimited debate” is often attributed to Aaron Burr. Upon leaving the Vice Presidency in 1805 (and therefore his role as the President of the Senate), Burr recommended eliminating a rule called the “previous question,” because it was so rarely used. The Senate took his advice and removed it in 1806.

However, as the United States expanded and added new representatives and senators, congressional debate became more unruly. In 1811, the House used its “previous question” rule to stop debate by majority vote. But the Senate, having removed the rule from its rulebook six years earlier, had no such mechanism. While scholars disagree about the exact date senators began giving extended speeches solely to delay and/or block legislation, 1837 is often considered the start. Eighty years later, in 1917, the Senate adopted the cloture process to cut off debate, but the supermajority requirement remained. Thus, between 1917 and 1975, only a two-thirds vote of the Senate could cut off debate.

Other changes, such as dual-tracking – allowing the Senate to consider two pieces of legislation simultaneously, so a filibuster on one did not stop Senate business altogether – increased the frequency of filibusters in the early-1970s. In 1975, the requirement was modified to a three-fifths vote (60 in a Senate with no vacancies) to end debate. Since then, growing polarization and increasing hardball partisan politics has led to abuse. The number of filibusters has skyrocketed in recent decades. Prior to 1973, there were a mere handful of filibusters in total. Today, there are hundreds of formal filibusters per Congress. This excludes many we cannot formally observe because senators can place holds on legislation: essentially an anonymous filibuster.

Recent History

Recent abuses have made the filibuster an endangered procedure, and since the mid-2000s, an increasing number of senators appear willing to scrap the procedure altogether. In 2013, the Senate began slowly chipping away at the 60-vote threshold. The Senate “went nuclear” that year, reducing the number of votes needed to cut off debate – from 60 to 51 – for district and circuit court nominees and most executive branch nominations. In the 115th Congress, Majority Leader McConnell went nuclear again to reduce the threshold for Supreme Court nominations in order to confirm Neil Gorsuch, and again in the 116th Congress to reduce post-cloture debate from 30 hours to 2 hours.

The Current State of Play:

Despite this weakening trend, the opposition of Senators Manchin (D-WV) and Sinema (D-AZ) to further filibuster carve-outs have thus far made another round of nuclear reforms impossible. As a result, Majority Leader Schumer crafted a different plan: Instead of reducing cloture from 60 votes to 51, he attempted to enforce the “two-speech” rule. Under Senate Rule XIX, no senator is allowed to speak more than twice on a single question. Therefore, if Democrats could hold the Senate in session and force Republicans into a “talking filibuster,” eventually every Republican would exhaust their two speech limit. At that point, the Senate’s presiding officer could put the question to a vote, which would only require 51 votes for passage. In other words, once Republicans exhausted their opportunities to speak, the Senate could move to a simple majority vote to pass voting rights.

However, Schumer’s motion went further than merely enforcing the two-speech rule. It also prevented all points of order, amendments, and any intervening motion. Essentially, Schumer’s strategy attempted to make the Senate more like the House by limiting all senators’ legislative rights. In this sense, while it may have been an attempt to limit the filibuster, Schumer’s motion also represented a potentially enormous power grab by the majority leader. Ultimately, this was too much for Manchin and Sinema, and the motion failed.

What this Says About the Senate Going Forward:

While the dust continues to settle from the failed move, the moment highlighted the Senate’s current dysfunction. Filibusters obstruct important legislation backed by the chamber majority. However, the tools available to rein in abuses limit senators’ rights and their ability to participate as equals. While the filibuster survives for now, it’s hard to envision how future attempts will create a more inclusive legislative body. The current rules make governing overly difficult for duly elected majorities. But limiting filibusters, as Congress has done before, will likely only empower the Senate’s party leaders. That, too, will have consequences in a historically polarized political climate when partisan gamesmanship too often preoccupies Congress’s governing processes.



Josh Huder is a Senior Fellow at the Government Affairs Institute

All Posts | @JoshHuder


Categories: Congressional Update, Legislative Process, Media Center, Revise & Extend, Senate, Updates