Donald Trump on Thursday suggested ending the filibuster to bring an end to the government shutdown, which has now passed one month with no signs of compromise on the horizon.
Both parties have previously defended or sought to dismantle the US Senate rule, depending on the moment and the contours of the debate.
“….BECAUSE OF THE FACT THAT THE DEMOCRATS HAVE GONE STONE COLD ‘CRAZY,’ THE CHOICE IS CLEAR — INITIATE THE ‘NUCLEAR OPTION,’ GET RID OF THE FILIBUSTER AND, MAKE AMERICA GREAT AGAIN!” the US president wrote on Truth Social.
Need a refresher on the filibuster and why it matters? Here is what you need to know:
So what is the filibuster?
In the movie version, an impassioned senator holds the floor by speaking at marathon length to block or force an issue. There’s also a much more common version, lodged deep in the parliamentary weeds. The latter, less cinematic version is the current focus.
The filibuster is a way for a relatively small group of senators to block some action by the majority. The filibuster rule allows a minority of 41 senators (out of 100 total) to prevent most pieces of legislation passing.
Whether you see that capability as an important safeguard against the tyranny of the majority or a guarantee of institutional paralysis probably corresponds with your party identity and who controls the Senate at the time.
Why does Trump want to end it?
Trump wants to abolish the filibuster so that Republicans can vote to reopen the government without needing Democrats’ votes.
The Senate has voted more than a dozen times to reopen the government, all of which have failed because most Democrats are holding out their votes to get concessions on healthcare subsidies. Without concessions, health insurance costs through the Affordable Care Act marketplaces are set to rise dramatically at the end of the year.
Without the filibuster in place, Republicans in the Senate would be able to reopen the government, and Democrats would lose whatever leverage they have legislatively for these concessions.
Would ending the filibuster really work?
On the shutdown in particular, without a filibuster in place, Republicans would have the votes to pass a bill to reopen the government.
On other issues, the caucus would need to be unified to take advantage of the filibuster’s demise. Republicans currently hold 53 seats in the Senate to Democrats’ 47, giving them only a little room to lose caucus members and pass bills with bare majorities.
For Democrats, what is the strongest argument in favor of keeping the filibuster?
The legislative filibuster was used by Democrats in Trump’s first term to block funding for the border wall, to protect unemployment benefits and to stop Republicans from restricting abortion access.
Without the filibuster, Republicans could pass laws with a bare majority, paving the way for all manner of Maga pipe dreams.
Have Democrats called for an end to the filibuster?
They have, most recently during Joe Biden’s presidency, so they could move some of their priorities through the chamber without help from Republicans.
At the time, Democrats said Republicans abused the filibuster serially, forcing their minority vision on the entire country with narrow-minded parliamentary tactics and blocking policies the people support, such as gun control.
Should the Senate really get rid of the filibuster?
Democrats didn’t get rid of it during the Biden presidency despite frequent calls. Some Democrats, mostly centrists, vigorously defended the filibuster as a way to defend against excesses, saying it was necessary to keep it in place to fend off Republicans if they regained power.
Now, with Republicans back in control, it is less clear if their caucus have such staunch filibuster defenders, especially during a prolonged shutdown and with Trump pressuring them.
But couldn’t Democrats just block any effort to end the filibuster … with a filibuster?
No. In a paradox best left alone, the power of the filibuster may be exorcised by a straight majority vote.
Wouldn’t scrapping the filibuster violate hallowed history?
On the contrary. The filibuster has a generally ignominious history, with some moments of glory. It’s not in the constitution and it emerged in its current form only through the exigencies of wartime a century ago. Since then, the filibuster has prominently been used to prop up racially discriminatory Jim Crow laws.
Two of the most famous uses of the movie-version filibuster mentioned above were by the segregationist senator Strom Thurmond, who in 1957 held the Senate floor for more than 24 hours in an attempt to block civil rights legislation – and who mounted a sequel filibuster to sequel legislation in 1964.
Cory Booker, a Democrat from New Jersey, notably held the Senate floor for more than 25 hours for a speech that broke Thurmond’s record earlier this year, but it wasn’t technically a filibuster. It looked just like one, though.
Who else hates the filibuster?
In a separate address at the funeral of the civil rights leader representative John Lewis in 2020, Barack Obama laid the filibuster on the chopping block.
“Once we pass the John Lewis Voting Rights Act, we should keep marching,” Obama said, referring to a bill to stop minority disenfranchisement. “And if all this takes eliminating the filibuster – another Jim Crow relic – in order to secure the God-given rights of every American, then that’s what we should do.”
Support for the filibuster has generally tracked with whichever party is in power. If you have a majority of votes, odds are someone in the caucus will call for the filibuster to end to move legislation. If you are in the minority, you’re probably defending it.
Which party pioneered filibuster abuse?
The who-started-it argument about killing the filibuster revolves around federal judicial nominees and whether they could be filibustered.
In brief, the Democrats were first to filibuster a federal judge nominee, in response to a loathed George W Bush pick who at the time was taken to be so uniquely unacceptable as to warrant unusual measures.
Years later Mitch McConnell adopted the strategy on steroids, blocking an army of Obama-nominated judges. In response, the Democrats in 2013 killed the filibuster for executive nominees below the level of supreme court justice.
In 2017, to begin cramming the supreme court with what would turn out to be three Trump justices, McConnell killed what was left of the judicial filibuster. Only the legislative filibuster remains, and it’s on life support.
