Legal and Regulatory

The Filibuster Dilemma

Rules governing filibusters have been adjusted by both sides of the aisle. How much is too much?
By Peter Comstock
March 7, 2022
Topics
Legal and Regulatory

When the late U.S. Senate Majority Leader Harry Reid, D-Nev., and his Democratic colleagues changed Senate rules in 2013 to allow for most federal judicial nominees and executive office appointments by the president to be approved by a simple majority vote, they set the stage for debate on the elimination of the filibuster entirely. At the time, Senate Minority Leader Mitch McConnell, R-Ky., told Democrats on the Senate floor: “You’ll regret this, and you may regret this a lot sooner than you think.”

The 2013 action to change the longstanding, 60-vote threshold for nominees led to Republicans exercising their own “nuclear option” that allows for a simple majority vote to approve Supreme Court nominees. This change eventually resulted in the largely partisan confirmation of three Supreme Court justices under President Donald Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Republicans again modified filibuster rules in 2019 to reduce debate time on presidential nominees, but throughout his term as Senate majority leader, McConnell defended the legislative filibuster and the 60-vote threshold as critical to bipartisanship. While in the minority during President Donald Trump’s time in office, Senate Democrats used the filibuster numerous times to block Republican legislation. However, as majority leader, McConnell, along with many other Republican senators, continually rejected President Trump’s calls to end or modify the legislative filibuster to enact Republican priorities.

Battling for Bipartisanship

While the 117th Congress has seen bipartisan agreement work successfully in the passage of the Infrastructure Investment and Jobs Act, Democratic leadership is seeking to change the legislative filibuster rule due to pressure to fulfill promises in an election year. Both President Joe Biden and Senate Majority Leader Chuck Schumer, D-N.Y., have stated their support for filibuster-reform proposals that would eliminate the 60-vote threshold for legislation that addresses the nation’s election laws, potentially seeking to carve out a narrow or one-time exemption from the filibuster. Many other prominent Democrats in the Senate and U.S. House of Representatives have also backed changes to the filibuster, with some calling for its complete elimination.

While the budget reconciliation process has allowed both parties to pass partisan legislation by majority-only votes in recent years, critics have argued that changing the filibuster rules for nonbudgetary-related legislation would devastate the Senate and open the door to the passage of entirely partisan legislation in years with one-party rule in the White House and both chambers of Congress. In his floor speech opposing the rule change, McConnell defended the filibuster as making the “Senate serve its founding purpose: forging compromise, cooling passions and ensuring that new laws earn broad support from a cross section of our country.”

Conversely, the president and his supporters in the Senate have argued that the longstanding rules have hindered progress and must be changed for the benefit of democracy. Speaking to a crowd in Atlanta in January 2022, President Biden—who served in the Senate for 36 year and lauded the filibuster rules during his tenure—called for significant changes to the filibuster to advance his party’s proposals on voting rights and election laws. During his speech, he said that the filibuster has “rendered [the Senate] a shell of its former self” and that “the threat to our democracy is so grave that we must find a way to pass these voting rights bills.”

In-House Opposition

Standing in the way of the president and majority leader are two members of their own party: Sen. Joe Manchin, D-W.Va., who previously opposed filibuster rule changes for nominees in 2013, 2017 and 2019, and Sen. Kyrsten Sinema, D-Ariz. While both support the majority’s election-law reforms, they have refused to back changes to the legislative filibuster to achieve the goal of passing these bills into law.

Sinema took to the Senate floor in January to voice her opposition to the rule change, stating, “When one party need only negotiate with itself, policy will inextricably be pushed from the middle toward the extremes.” She added that the filibuster proposals from her party’s leadership would only “worsen the underlying disease of division infecting our country.” Manchin has also continually stated his opposition to rule changes without bipartisan buy-in and has been skeptical of a carve-out, stating that “anytime there’s a carve-out, you eat the whole turkey.”

McConnell has cautioned his colleagues across the aisle, vowing retaliation and retribution if Democrats were to implement the nuclear option to pass significant legislation and silence the minority in the Senate. With narrow control of the 50-50 Senate, Schumer would need all Democratic party members onboard to change the filibuster rule and move forward with a slew of Democratic priorities before the midterm elections and the end of the year. A recent vote that would have required a talking filibuster on the voting rights legislation tested Democrats’ support, failing by a vote of 48-52, with Manchin and Sinema joining with Republicans to prevent the rule change.

While Democrats currently lack the votes to eliminate or change the filibuster, President Biden and a majority of Democrats in Congress have clearly staked their position against the current filibuster rule and in favor of partisan reforms to the 60-vote threshold in the Senate. Democrats currently hold a majority in Congress and control the White House, but their recent crusade against the filibuster could put them in a difficult position if or when power shifts.

by Peter Comstock

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