During a CNN downhill on Thursday, 21 October, United States President Joe Biden said that the US Senate will have to "fundamentally alter the filibuster" in order to get laws passed on "certain issues", Reuters reported.
The statement comes in the backdrop of Senate Republicans, for the third time this year, blocking a bill that the Democrats tried to bring to the floor for debate.
The proposed bill would nullify the restrictive voting laws that have been recently established in Republican states.
The patience of the Democratic Party, with respect to the refusal of the Grand Old Party to cooperate on voting legislation, seems to be running out, with some even suggesting that Senate rules be changed in a way that would allow the Democrats to pass laws.
Senator Angus King from Maine who is de facto allied to the Democratic Party said, "I’ve concluded that democracy itself is more important than any Senate rule", reported The Associated Press.
The controversy isn't a simple one as there are many conceptual questions that need answering. What is the current composition of the Senate and why is it difficult for the Democrats to pass laws?
What is the filibuster and why was it introduced? Why does it continue exist, and what are the arguments for and against it? Other than abolition, what are the other ways the filibuster can be tweaked to make it easier for the passage of legislation?
Understanding the US Senate Filibuster: Why is Joe Biden Talking About It?
1. How Are Laws Passed in the US Congress Anyway?
Let's begin with the very basics. The US Congress is divided into two chambers: The House of Representatives and the Senate.
The current composition of the Congress is as follows. There are 435 voting members in the House, out of which 220 are Democrats and 212 are Republicans.
Three seats are presently vacant. Additionally, there are six non-voting members who can participate in House debates and committee hearings but can't vote on legislation.
On the other hand, there are 100 members in the Senate, out of which 50 are Republicans, 48 are Democrats and two are independent members: Angus King of Maine and Bernie Sanders of Vermont, who are allied with the Democrats.
The Vice President of the US, in this case Democrat Kamala Harris, chairs the Senate and in the scenario where opposing votes are tied, casts the tie-breaking vote.
If a bill is introduced in the House, it needs a simple majority (218/435) of votes to move on to the Senate, where it again requires a simple majority (51/100) to land on the US president's desk.
If a bill is introduced in the Senate first, the same procedure is followed, starting from the Senate to the House to the White House.
Once a bill has reached the president, they can either approve it and sign it into law or veto it.
But the Congress has the power to veto a presidential veto, the latest instance being President Trump's veto of the defence spending bill being overridden by both chambers.
Both the House and Senate need a two-thirds majority to override a presidential veto.
Now that the basics of voting and law-making are clear, let's move on to the filibuster, which is essentially and anti-legislation strategy.
Expand2. The Filibuster
In the simplest of words, the filibuster is a rule that only exists in the Senate and basically says that 60 votes are required to end the debate on most bills, which would then become subject to vote.
Therefore, the Senate de facto requires 60 votes to pass legislation, not 51.
The Senate must follow procedure while attempting to turn a bill into a law. When a bill arrives on the floor, it is first debated before being voted upon.
But for the vote to begin, the debate has to end. Any senator can bring the entire process to a standstill by speaking for hours and hours, which effectively prevents the vote on the bill because the Senate can't debate on the same bill forever.
The filibuster can be resisted with a parliamentary tool called cloture, which is the rule that says 60 votes in favour of ending the debate can lead to voting.
Basically, we end up in a situation where every bill, in order to reach the stage of voting, needs the cloture vote of 60 senators.
But the problem is quite clear, isn't it? Most laws are voted upon party-lines, that is, all Democrats usually vote one way, while all Republicans usually vote the other in what is also known as partisan voting.
Both Democrats and Republicans only have 50 votes with them at the moment, 51 for the former, assuming that Vice President Harris will always vote with the Democrats.
Having 60 senators from the same party has become an impossibility.
The last time either of the two parties had 60 or more seats in the Senate was during the 95th Congress (the first two years of the Jimmy Carter administration) in 1977, when the Democrats had 61 seats with one independent caucusing with them, and the Republicans had 38 seats.
That is why the Democrats are finding it so hard to pass legislation today, because the filibuster has been used by the Grand Old Party as a tool to block bills on new voting laws, immigration, gun control, police conduct and even on the 6 January insurrection's investigation, The New York Times reported.
Of course, the Democrats have also used it many times in the past to block Republican bills on the Senate floor. Indeed, the filibuster has a long history.
Expand3. A Brief History and Evolution of the Filibuster
The word's origins can be traced back to the Dutch word vribuyter, which means "freebooter" or someone, like a pirate, who stole booty.
In the context of US politics, it refers to a lawmaker who "pirates" parliamentary proceedings, according to NPR and USA Today.
The story of how the filibuster was created is a strange one. In 1789, the first-ever Senate had a rule called the "previous question", which was essentially a motion to end debate on a pending bill (via a simple majority vote) and proceed to a vote.
But the third Vice President of the US from 1801-1805, Aaron Burr, argued that the "previous question" was hardly utilised and thus should be disposed.
The Senate agreed but created no alternative, leading, in 1806, to the creation of the filibuster, which at the time did not even have the cloture rule. Debate on a bill could go on forever and ever without any voting to end it.
Since there were no rules, not even subjective ones, to end the filibuster, it began to be used quite extensively in the mid 19th century by pro-slavery politicians who would block laws by abolitionists that aimed to end slavery.
These rules continued to exist for more than a 100 years before the fate of the filibuster was changed by the First World War.
President Woodrow Wilson had asked the Congress for permission to provide weapons to American merchant vessels to scare off the threatening German U-boats, as reported in The New York Times.
More than 10 anti-war senators refused. In response, the Senate changed the rules with a 76–3 roll call vote that permitted the use of cloture to end debate and proceed to voting.
The threshold for cloture was a two-thirds majority of voting senators.
The filibuster went through some minor changes before the cloture limit itself was reduced to the votes of three-fifths of all Senators, that is, 60 votes.
A part of the reason for this change was the unreasonable way it was being used by senators from the South, who supported racial segregation in American society.
They used the filibuster very effectively to block any law that tried to promote the rights of Black American citizens, USA Today reported.
Here's a shocking fact. The longest filibuster in the history of the US Senate was executed by senator Strom Thurmond, who was so vigilant in his opposition to the Civil Rights Act of 1957 that he spoke against it for 24 hours and 18 minutes during the Senate debate.
Nevertheless, the new cloture rule of 60 votes to end debate has existed till date. Both Republicans and Democrats have used it against presidents like Clinton, Bush Jr, and Obama.
Before I get to why the filibuster still exists and how it can be overcome, it might be pertinent to discuss the arguments that are for and against its existence.
Expand4. The Case For and Against the Filibuster
Numerous arguments exist to keep or do away with the filibuster.
For the Filibuster
The strongest one in favour is concerning the necessity of bipartisanship in a healthy democracy.
The filibuster, proponents say, promotes compromise and negotiations amongst opposing parties while passing legislation, and prevents the final law from becoming too much in favour of one party, thereby ensuring benefits for the constituents of both the Democratic Party and the GOP.
Such laws increase the trust of the people in the American government.
Supporters also say that the filibuster prevents a Senate majority, regardless of which party is enjoying the majority, from abusing legislative power.
This point also holds considerable weight. Consider President Donald Trump's demand from Senate Majority Leader Mitch McConnell of the GOP when the former wanted the filibuster abolished in order to secure Congressional funding for his Mexico wall.
At that point of time, both the House and the Senate belonged to the GOP. Had McConnell abolished the filibuster so that Trump could get money for his wall, it would be seen as a gross majoritarian abuse of power by the Republicans.
Against the Filibuster
The most obvious argument against the filibuster is that it prevents any work from getting done.
Important bills on voting rights, immigration, and gun control, regardless of which direction they go in the right-left spectrum, are bound to be blocked by the opposing party because of how polarised American politics and society are today.
The constitutional case against it is that it has no historical standing. Its creation was accidental and it was properly enacted as rule more than a century after the ratification of the US Constitution, by Wilson in 1917.
Finally, it has also been called a rule that is intrinsically racist. The Atlantic called the filibuster "another monument to white supremacy" because of how it was, is, and will continue to be used as a legislative tool to prevent the progress of Black Americans.
Expand5. Overcoming the Filibuster
The filibuster can be reformed or it can be totally eliminated.
With respect to the former, for example, in the 1970s, the Congress allowed taxing and spending bills to be made into laws by bypassing the filibuster, Vox reported.
Similarly, filibuster rules can be modified to protect certain types of bills from the filibuster.
The most extreme option, however, is something known because of its extremity, as the "nuclear option."
Usually, the rules of the Senate can be changed only with a supermajority, that is, with the support of two-thirds of the chamber. With the nuclear option, the Senate can overturn a rule by merely a simple majority.
For example in 2013, Democrat Harry Reid used the nuclear option to nullify the cloture rule for presidential and judicial nominations except those for the US Supreme Court, The Washington Post reported.
Then in April 2017, GOP leader McConnell removed the cloture rule for Supreme Court nominations, the Post added.
So, why not remove the cloture rule for all legislations, thereby abolishing the filibuster altogether?
It has been proposed. Biden has talked a lot about it, like he did on Thursday.
But both parties have been too scared to abolish it when either is leading in the Senate. Why? Because both know that their majority won't last forever.
Abolishing the filibuster to push through partisan and controversial legislation will create an ugly situation of legislative vendettas.
Imagine if the filibuster gets abolished today and Democrats pass sweeping legislation on gun control that angers the GOP and its supporters.
When the GOP eventually returns to lead the Senate, it could use the same freedoms within the Senate to undo everything the Democrats did, and pass additional vindictive laws simultaneously.
Therefore, a party would rather maintain the status quo than give the other party any pretext to pass laws that would create catastrophic consequences for the former's constituents.
Despite the need for compromise, there has been lot of buzz all year surrounding the abolition of the filibuster.
We'll have to see whether the current US president is eager enough to encourage it, and whether the current Senate is brave enough to make it happen.
(With inputs from Reuters, Associated Press, the New York Times, the Washington Post, Vox, The Atlantic, and USA Today.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)
Expand
How Are Laws Passed in the US Congress Anyway?
Let's begin with the very basics. The US Congress is divided into two chambers: The House of Representatives and the Senate.
The current composition of the Congress is as follows. There are 435 voting members in the House, out of which 220 are Democrats and 212 are Republicans.
Three seats are presently vacant. Additionally, there are six non-voting members who can participate in House debates and committee hearings but can't vote on legislation.
On the other hand, there are 100 members in the Senate, out of which 50 are Republicans, 48 are Democrats and two are independent members: Angus King of Maine and Bernie Sanders of Vermont, who are allied with the Democrats.
The Vice President of the US, in this case Democrat Kamala Harris, chairs the Senate and in the scenario where opposing votes are tied, casts the tie-breaking vote.
If a bill is introduced in the House, it needs a simple majority (218/435) of votes to move on to the Senate, where it again requires a simple majority (51/100) to land on the US president's desk.
If a bill is introduced in the Senate first, the same procedure is followed, starting from the Senate to the House to the White House.
Once a bill has reached the president, they can either approve it and sign it into law or veto it.
But the Congress has the power to veto a presidential veto, the latest instance being President Trump's veto of the defence spending bill being overridden by both chambers.
Both the House and Senate need a two-thirds majority to override a presidential veto.
Now that the basics of voting and law-making are clear, let's move on to the filibuster, which is essentially and anti-legislation strategy.
The Filibuster
In the simplest of words, the filibuster is a rule that only exists in the Senate and basically says that 60 votes are required to end the debate on most bills, which would then become subject to vote.
Therefore, the Senate de facto requires 60 votes to pass legislation, not 51.
The Senate must follow procedure while attempting to turn a bill into a law. When a bill arrives on the floor, it is first debated before being voted upon.
But for the vote to begin, the debate has to end. Any senator can bring the entire process to a standstill by speaking for hours and hours, which effectively prevents the vote on the bill because the Senate can't debate on the same bill forever.
The filibuster can be resisted with a parliamentary tool called cloture, which is the rule that says 60 votes in favour of ending the debate can lead to voting.
Basically, we end up in a situation where every bill, in order to reach the stage of voting, needs the cloture vote of 60 senators.
But the problem is quite clear, isn't it? Most laws are voted upon party-lines, that is, all Democrats usually vote one way, while all Republicans usually vote the other in what is also known as partisan voting.
Both Democrats and Republicans only have 50 votes with them at the moment, 51 for the former, assuming that Vice President Harris will always vote with the Democrats.
Having 60 senators from the same party has become an impossibility.
The last time either of the two parties had 60 or more seats in the Senate was during the 95th Congress (the first two years of the Jimmy Carter administration) in 1977, when the Democrats had 61 seats with one independent caucusing with them, and the Republicans had 38 seats.
That is why the Democrats are finding it so hard to pass legislation today, because the filibuster has been used by the Grand Old Party as a tool to block bills on new voting laws, immigration, gun control, police conduct and even on the 6 January insurrection's investigation, The New York Times reported.
Of course, the Democrats have also used it many times in the past to block Republican bills on the Senate floor. Indeed, the filibuster has a long history.
A Brief History and Evolution of the Filibuster
The word's origins can be traced back to the Dutch word vribuyter, which means "freebooter" or someone, like a pirate, who stole booty.
In the context of US politics, it refers to a lawmaker who "pirates" parliamentary proceedings, according to NPR and USA Today.
The story of how the filibuster was created is a strange one. In 1789, the first-ever Senate had a rule called the "previous question", which was essentially a motion to end debate on a pending bill (via a simple majority vote) and proceed to a vote.
But the third Vice President of the US from 1801-1805, Aaron Burr, argued that the "previous question" was hardly utilised and thus should be disposed.
The Senate agreed but created no alternative, leading, in 1806, to the creation of the filibuster, which at the time did not even have the cloture rule. Debate on a bill could go on forever and ever without any voting to end it.
Since there were no rules, not even subjective ones, to end the filibuster, it began to be used quite extensively in the mid 19th century by pro-slavery politicians who would block laws by abolitionists that aimed to end slavery.
These rules continued to exist for more than a 100 years before the fate of the filibuster was changed by the First World War.
President Woodrow Wilson had asked the Congress for permission to provide weapons to American merchant vessels to scare off the threatening German U-boats, as reported in The New York Times.
More than 10 anti-war senators refused. In response, the Senate changed the rules with a 76–3 roll call vote that permitted the use of cloture to end debate and proceed to voting.
The threshold for cloture was a two-thirds majority of voting senators.
The filibuster went through some minor changes before the cloture limit itself was reduced to the votes of three-fifths of all Senators, that is, 60 votes.
A part of the reason for this change was the unreasonable way it was being used by senators from the South, who supported racial segregation in American society.
They used the filibuster very effectively to block any law that tried to promote the rights of Black American citizens, USA Today reported.
Here's a shocking fact. The longest filibuster in the history of the US Senate was executed by senator Strom Thurmond, who was so vigilant in his opposition to the Civil Rights Act of 1957 that he spoke against it for 24 hours and 18 minutes during the Senate debate.
Nevertheless, the new cloture rule of 60 votes to end debate has existed till date. Both Republicans and Democrats have used it against presidents like Clinton, Bush Jr, and Obama.
Before I get to why the filibuster still exists and how it can be overcome, it might be pertinent to discuss the arguments that are for and against its existence.
The Case For and Against the Filibuster
Numerous arguments exist to keep or do away with the filibuster.
For the Filibuster
The strongest one in favour is concerning the necessity of bipartisanship in a healthy democracy.
The filibuster, proponents say, promotes compromise and negotiations amongst opposing parties while passing legislation, and prevents the final law from becoming too much in favour of one party, thereby ensuring benefits for the constituents of both the Democratic Party and the GOP.
Such laws increase the trust of the people in the American government.
Supporters also say that the filibuster prevents a Senate majority, regardless of which party is enjoying the majority, from abusing legislative power.
This point also holds considerable weight. Consider President Donald Trump's demand from Senate Majority Leader Mitch McConnell of the GOP when the former wanted the filibuster abolished in order to secure Congressional funding for his Mexico wall.
At that point of time, both the House and the Senate belonged to the GOP. Had McConnell abolished the filibuster so that Trump could get money for his wall, it would be seen as a gross majoritarian abuse of power by the Republicans.
Against the Filibuster
The most obvious argument against the filibuster is that it prevents any work from getting done.
Important bills on voting rights, immigration, and gun control, regardless of which direction they go in the right-left spectrum, are bound to be blocked by the opposing party because of how polarised American politics and society are today.
The constitutional case against it is that it has no historical standing. Its creation was accidental and it was properly enacted as rule more than a century after the ratification of the US Constitution, by Wilson in 1917.
Finally, it has also been called a rule that is intrinsically racist. The Atlantic called the filibuster "another monument to white supremacy" because of how it was, is, and will continue to be used as a legislative tool to prevent the progress of Black Americans.
Overcoming the Filibuster
The filibuster can be reformed or it can be totally eliminated.
With respect to the former, for example, in the 1970s, the Congress allowed taxing and spending bills to be made into laws by bypassing the filibuster, Vox reported.
Similarly, filibuster rules can be modified to protect certain types of bills from the filibuster.
The most extreme option, however, is something known because of its extremity, as the "nuclear option."
Usually, the rules of the Senate can be changed only with a supermajority, that is, with the support of two-thirds of the chamber. With the nuclear option, the Senate can overturn a rule by merely a simple majority.
For example in 2013, Democrat Harry Reid used the nuclear option to nullify the cloture rule for presidential and judicial nominations except those for the US Supreme Court, The Washington Post reported.
Then in April 2017, GOP leader McConnell removed the cloture rule for Supreme Court nominations, the Post added.
So, why not remove the cloture rule for all legislations, thereby abolishing the filibuster altogether?
It has been proposed. Biden has talked a lot about it, like he did on Thursday.
But both parties have been too scared to abolish it when either is leading in the Senate. Why? Because both know that their majority won't last forever.
Abolishing the filibuster to push through partisan and controversial legislation will create an ugly situation of legislative vendettas.
Imagine if the filibuster gets abolished today and Democrats pass sweeping legislation on gun control that angers the GOP and its supporters.
When the GOP eventually returns to lead the Senate, it could use the same freedoms within the Senate to undo everything the Democrats did, and pass additional vindictive laws simultaneously.
Therefore, a party would rather maintain the status quo than give the other party any pretext to pass laws that would create catastrophic consequences for the former's constituents.
Despite the need for compromise, there has been lot of buzz all year surrounding the abolition of the filibuster.
We'll have to see whether the current US president is eager enough to encourage it, and whether the current Senate is brave enough to make it happen.
(With inputs from Reuters, Associated Press, the New York Times, the Washington Post, Vox, The Atlantic, and USA Today.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)