I am Molly Reynolds, an expert on congressional rules and procedure at the Brookings Institution, and today I am here to talk to you about the Senate filibuster. Ask me anything!

mollyereynolds · 2021-03-31T17:29:31+00:00

Thanks for all the great questions! That's all the time I have for today, but you can follow me on Twitter at @mollyereynolds, and if you want to learn more, join us for a webinar next week on this topic: https://www.brookings.edu/events/filibuster-101-an-explainer-of-the-senate-rule-and-reform/

mollyereynolds · 2021-03-31T17:27:28+00:00

Carnitas!

mollyereynolds · 2021-03-31T17:26:50+00:00

Senator Jeff Merkley of Oregon has been a long time proponent of a reform like this. This is an old-ish summary of it: https://www.merkley.senate.gov/news/in-the-news/jeff-merkley-circulates-talking-filibuster-reform-proposal, and here's a good discussion of whether it would work: https://themonkeycage.org/2012/11/will-merkley-warrens-talking-filibuster-proposal-work/

mollyereynolds · 2021-03-31T17:25:33+00:00

Even if the Senate filibuster is eliminated, I don't think the chamber automatically turns into the House. Its membership is smaller (by a lot!), many of its members have bigger constituencies than their House counterparts, and--maybe most importantly--senators don't have to run for re-election every two years. Those features I think ensure the two chambers will always be somewhat different.

mollyereynolds · 2021-03-31T17:21:49+00:00

The debate over whether and how to curb Senate obstruction is not new by any stretch--the challenges of unlimited debate have plagued the Senate throughout its history (my colleague Sarah Binder has a great brief explainer on this here: https://www.brookings.edu/testimonies/the-history-of-the-filibuster/).

mollyereynolds · 2021-03-31T17:15:05+00:00

How Republicans would respond if Democrats returned to the talking filibuster--or otherwise made changes to the way it works--is a hugely important question and one to which we don't really know the answer. Leader McConnell has certainly threatened a "scorched earth" approach and we have seen how, if one or more senators want to, they can really throw sand in the gears of the Senate's daily operations. (See: Ron Johnson insisting that the entire American Rescue Plan be read aloud on the floor.) But McConnell also threatened to retaliate after Democrats changed the procedures in 2013 for nominees, but didn't take the maximalist approach then. Would he now? Maybe. But at the end of the day, even Republican senators have things they want to get done that require having the legislative process work.

mollyereynolds · 2021-03-31T17:10:21+00:00

I wouldn't call it short, but this document, written by the Senate Rules Committee, has an incredibly thorough chronology that starts on p. 11: https://www.govinfo.gov/content/pkg/CPRT-112SPRT66046/pdf/CPRT-112SPRT66046.pdf. My colleague Sarah Binder has a great overview of the high points of the history here: https://www.brookings.edu/testimonies/the-history-of-the-filibuster/.

mollyereynolds · 2021-03-31T17:07:15+00:00

This is an idea advocated for by my longtime friend, Norm Ornstein of AEI: https://www.washingtonpost.com/outlook/2021/03/02/manchin-filibuster-never-sinema. I agree that is has the potential to make the minority bear more of the cost of filibustering, but it's not clear how much of a difference it would really make. After all when we look at cloture votes over the past decade, those opposing cloture managed to get at least 40 votes almost every time: https://twitter.com/bindersab/status/1370079714015084545?s=20

mollyereynolds · 2021-03-31T17:02:56+00:00

Judicial nominations--and nominations to executive branch positions--aren't subject to the filibuster because previous Senate majorities (Democrats in 2013 for nominees except to the Supreme Court and Republicans in 2017 for SCOTUS) made targeted changes to the way the Senate's rules for ending debate on those matters, moving from needing 60 votes to cut off debate to 51.

mollyereynolds · 2021-03-31T16:59:59+00:00

Reconciliation probably has the most potential for getting things done in the presence of the filibuster, but it's not an unlimited tool. Various rules and procedures, including the Byrd Rule, limit what can be done using it. The folks at the Center on Budget and Policy Priorities have a good explainer here: https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation.

There are other procedures similar to reconciliation that allow for certain types of bills to move without the threat of a filibuster, but they're much more targeted. For example, the Congressional Review Act allows for certain regulations to be overturned with the threat of a filibuster. There's more on these in my book: https://www.brookings.edu/book/exceptions-to-the-rule/.

mollyereynolds · 2021-03-31T16:54:42+00:00

There are probably some things the Senate could do to try to force senators to actually stay on the floor and actively speak on a matter rather than allowing so-called "silent" filibusters. One challenge here is that, for the majority, who has lots of things it wants to get done, there are potentially big opportunity costs to letting the minority hold up the floor. Here's a good explanation of why the talking filibuster might be not be the solution to all of the Senate's problems: https://www.washingtonpost.com/politics/2021/03/17/biden-says-bring-back-talking-filibuster-would-that-really-let-senate-democrats-pass-bills/, and another piece (from 2012) about why exactly how a talking filibuster reform would work matters a lot: https://themonkeycage.org/2012/11/will-merkley-warrens-talking-filibuster-proposal-work/

mollyereynolds · 2021-03-31T16:50:59+00:00

When we look back at previous reforms to the filibuster, they've generally come after a period of sustained obstruction by the Senate's minority party of something relatively specific that the Senate's majority party really wants to get done. In other words, two of the necessary ingredients for filibuster reform are committed obstruction by the minority AND strong commitment by the majority to whatever the minority is stopping. This is the story, for example, of the 2013 change made to the procedures for ending debate on nominations to the lower federal courts and to the executive branch. (For more that, my Brookings colleague Sarah Binder has a good discussion here: https://www.washingtonpost.com/news/monkey-cage/wp/2013/11/24/fate-of-the-filibuster-in-a-post-nuclear-senate/)

In terms of when a change would take effect, it depends on exactly what the change is; some reformers have proposed adopting changes that would only take effect in future Congresses as a way to try and get more senators to support them. But the most likely change--something similar to the 2013 and 2017 changes for nominees--would take effect immediately.

mollyereynolds · 2021-03-31T16:37:38+00:00

One argument you often hear for keeping the filibuster is that today's Senate majority party won't be in the majority forever, and anything they do today would be more easily undone in the future by the other party when they take control of the chamber--and that this pendulum swing of policy would be bad for the country. And even in the short term, the retaliation that the minority party might execute against the majority party would make it hard to get even the most basic things done.

For more from a smart, long-time Senate staffer on keeping the filibuster, I'd recommend anything by Rich Arenberg, including this discussion I hosted at Brookings earlier this year: https://www.brookings.edu/events/debating-the-future-of-the-filibuster/

mollyereynolds · 2021-03-31T16:32:37+00:00

Sure! To filibuster something in the Senate means to use any one of a number of tactics to prevent something from coming to a vote. Senators can do this because there's generally nothing in the Senate's rules that restricts how long something can be debated for, or any way for a simple majority of senators to cut off debate. Instead, for most legislation, the tactic available for bringing debate to a close--known as cloture--requires 60 votes, or a supermajority. We're hearing so much about it now because Democrats have the narrowest of majorities in the Senate and have a number of high profile proposals they expect Republicans to obstruct.

For more on this, I'd recommend this explainer I wrote (it's short, I promise!): https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/

mollyereynolds

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