The Role of the Filibuster


Heritage Explains

The Role of the Filibuster

The filibuster empowers the minority and frustrates the majority. Extended debate has always been a part of the way the Senate does its legislative business.

This week on the “Heritage Explains” podcast, Heritage senior legal fellow Thomas Jipping breaks down why the Senate filibuster is under attack and what’s at stake for conservatives.

MICHELLE CORDERO: Joe Biden has been inaugurated as president of the United States, and Democrats are fired up and ready to start passing their liberal agenda. But with the Senate split 50/50, and Vice President Kamala Harris casting tie-breaking votes, all eyes are on the filibuster.

Rumor has it that Democrats want to abolish the historic procedure in order to ram through their most contentious legislation; think government-run healthcare, the Green New Deal, and packing the Supreme Court, and that's just for starters.

You see, in the Senate, when voting on highly controversial bills that are likely to pass or fail by extremely small margins, lawmakers can use this procedural move to encourage more debate. To end this additional debate, otherwise known as the filibuster, the Senate must have 60 votes instead of 51 votes. You can see how this tool would be helpful to the GOP minority right now.

Last week, Senate minority leader, Mitch McConnell, threatened to delay an agreement on organizing the Senate unless Democrats make a commitment to keep the filibuster.

CLIP SEN. MITCH MCCONNELL: Twenty years ago, there was no talk, none whatsoever, of tearing down long-standing minority rights on legislation. The legislative filibuster is a crucial part of the Senate. Leading Democrats like President Biden himself have long defended it. Democrats themselves just spent six years using it liberally to block bills from Senator Tim Scott's police reform to coronavirus relief. And less than four years ago, when it was Republicans who held the Senate, the House and the presidency, 27 current Democrats, plus Vice-President Harris, signed a letter insisting this long standing rule should not be broken.

CORDERO: Critics of the filibuster say that it's broken our political process, holding up too many bills and that nothing ever happens. Today, Thomas Jipping, deputy director of Heritage's Meese Center for Legal and Judicial Studies explains why the filibuster was created, what Americans would face if it was eliminated, and what Democrats would have to do to actually get rid of it.

CORDERO: Tom, thanks so much for joining us.

THOMAS JIPPING: Thanks for having me.

CORDERO: Tom, I tried my best to explain the filibuster in the intro to our interview, but it's complicated and I don't think it could hurt to explain it one more time. What is the filibuster?

JIPPING: Well, think of it in terms of a two-sided coin, one side of the coin is the filibuster, which is when senators try to end debate on a bill or a nomination but they fail. But the other side of the coin is a positive side and that is that the Senate was designed and viewed, I think, from the beginning to play a different role in the legislative process than the House. The House, it takes action and it's just a simple majority of members can do whatever they want. Lots of things happen. Passions are flaring. But the Senate was designed to be more deliberative, to debate more. And so, a lot of times I like to refer to this as the Senate's right to extended debate, which is part of the way the Senate does its legislative business, it always has.

JIPPING: This might be a fictional story, but there's an anecdote from our early history that is pretty common when describing this. Either George Washington or James Madison, I don't remember, I don't know which said it was describing the design of the Congress to Thomas Jefferson, who was in France when the constitution was written and this was all put together. And they compared the House and the Senate to a tea cup and a saucer. The cup has the hot tea. And if you want to cool it, you can pour some of it into the saucer. So the Senate is like a cooling saucer to take the really hot, forceful action by the House, subject it to a different kind of evaluation, more considered analysis. And that's why you get extended debate. That's why that's an important part of the way the Senate does its business. So since the early part of the 19th century when it takes a super majority that is more than half of the Senate to end the debate, even though it takes a simple majority to pass a bill.

JIPPING: So first you’ve got to jump over the hoop where a large majority of senators, probably a bipartisan majority, decides that they've debated enough, that it's time to put something up for a vote. And then that vote in the end is a simple majority. So, you see how the two Houses, they operate differently, different approaches. And it's the combination of the two that produces the work that the Congress does. So extended debate is literally the heart and it's the most defining feature of the way the Senate does its work in the legislative process and has been for more than 200 years.

CORDERO: So you've been mentioning historically this is the way we've done it. Can you talk a little bit about the history? How far back does it go?

JIPPING: This practice where it requires a supermajority to bring debate to a close, that's been the practice in the Senate since about 1806. So almost our entire history, the Senate has had a rule to do that since 1917. It's Rule 22 in the Senate's rules. They call it the cloture rule because one phrase for ending debate is invoking cloture. So there's a process for invoking cloture under that rule, and it takes today 60 votes to do that. So like I said, it's a positive part of the way the Senate does its business because it encourages consensus, it encourages the majority to work with the minority and it avoids hopefully simply the majority ramming something through and pushing aside the minority party, all of which I think are good features of the process.

JIPPING: But if let's say 42, 43 senators oppose a bill, they don't have the votes to defeat it, but they can keep debate going. And if they can do that long enough, they can still defeat a bill that way by preventing a final vote. So the filibuster is when you try to end debate and it fails. The other side of the coin is extended debate, which most of the time is a positive feature of the way the Senate does its business.

CORDERO: What would you say to those people who believe that the Senate is broken and it never gets anything done because of the filibuster?

JIPPING: Well, I think to take a step back, it's not supposed to be easy for government to do stuff. At least in the United States, we built our government structure on some very basic ideas. And that is that when it comes to power, James Madison said that if men were angels, no government would be necessary. And if angels governed men, no controls on government would be necessary. The fact is, government can easily become corrupt, oppressive. The more powerful a government gets, the less freedom we have. So our system of government has limits and controls on government power. People have heard the phrase checks and balances. The president doesn't get to do everything that he wants his own way. Congress doesn't get to do everything that it wants. There's balances and limits.

JIPPING: And all of that is critically important because let's face it. World history is full of examples of governments that unless they have limits and controls and checks get really out of control. And the extended debate, the filibuster, that's part of that system of checks and balances. So it's a very important part of limiting government at least in the Senate, for example. I mean, after the 2020 election, the Senate is 50/50. Even before that, it was very closely divided. That narrow majority should not be able to force its will on the very large minority anytime that it wants. So it's part of that design for our government and I think it's a very important one.

CORDERO: And now, so of course Democrats, who have the majority in the Senate, want to get rid of it. And this is of course so they'd be able to easily pass their agenda with a simple majority vote and not have to deal with any roadblocks. If the filibuster was eliminated, what would Americans face?


JIPPING: Well, when you said that, I thought to myself, yeah, when I was a kid, I wanted my way all the time too. The filibuster empowers the minority and frustrates the majority. It does it; no matter which party runs the Senate, that's the way it's designed to be. It doesn't keep the majority from running the show, so to speak, it doesn't let the majority do it any way that it wants without any controls or limits whatsoever. And especially went into that now, we have a 50/50 Senate. Now imagine, especially now we're 50% of the Senate is elected by the people who did not want to have the Democrats in the majority. The Senate will be a Democratic Senate only because vice-president Harris, who is the president of the Senate, can break some ties. But for all practical purposes, that's as evenly divided as can be. That's the last situation where you want to try to radically transform an institution like the Senate.

CORDERO: Great point.

JIPPING: And it's interesting that back in 2005 was sort of the last time where there was a huge dust-up about whether to get rid of the filibuster. That was in the context of nominations rather than legislation, but the issues are the same. And I'll tell you, there are reams and reams and reams of the congressional record where Democrats, especially Chuck Schumer, he would go on page after page talking about how important the filibuster was and how we should not get rid of it. He said that if you get rid of the filibuster, it would emasculate the Senate. It would literally destroy the Senate. And so, it's a very different tune today. And like I said, we can all appreciate the fact that, look, if you're in charge, you want your way and you want it now, I get that. But when it comes to our government, when it comes to the political process, that's never been the way the American system of government has run and it shouldn't be now.

CORDERO: We sort of get the sense though, and especially in conversations I've had with you about packing the court, that it's kind of like all rules are off and that no one cares anymore and everyone is at this... The tension levels have risen so high that people would do things that maybe they hadn't done in the past.

JIPPING: That's true. But of course, remember, some of these cliches that are around: power corrupts, absolute power corrupts absolutely, might makes right. Do we really believe that? Is that what we want to accept? I was looking at the history of that phrase, might makes right, it was first used by an abolitionist in the 19th century and in the way he described it, he said it's a bad idea because it pushes debate, dialogue out of the way when we should actually be encouraging it. So, the filibuster today plays probably an even more valuable role than it has in the past because without things like that, there'd be no incentive at all for Republicans and Democrats to talk to each other to work out better solutions to problems.

JIPPING: Some of the more radical things that Democrats want to do, whether it's the Green New Deal, packing the court, Medicare for all, this kind of these really extreme proposals, do we want there to be just an unfettered clear path, grease those skids and get these incredibly radical proposals through with no challenge, or do we want a process that could perhaps take out the worst parts of them, make them better, tell us who supports the radical ideas and who wants a little bit more compromise.

JIPPING: That's the way our system is designed to work and it can work today and it ought to, but the only way to do that is to say, look, the way our system is built, the checks and balances that we have, the process that has been established, it's a good process and we ought to all support it whether we're in charge or not. It doesn't depend on whose agenda is on the plate at a particular time. We ought to want that process to be sound and to have integrity and to have our institutions work the way they should no matter which party is in charge.

CORDERO: Tom, in conclusion, if the Democrats moved forward with this, what's the process they would need to use to actually get rid of the filibuster?

JIPPING: Well, if there's anything more radical than getting rid of the filibuster, which has defined the Senate for 200 years, it's how they would have to do it. Under the Senate rules, it takes actually 67 votes to bring up a change to Senate rules. And so what they'd have to do is actually kind of sneaky. They would have to not attempt to change what the rules say, they would have to try to change what the rules mean. It's kind of what the Supreme Court does with the constitution when it pretends that something's written there when it really isn't, and that they can do by a simple majority. So they would have to get the Senate to vote, it would be a 50/50 vote, and then Vice President Harris would break a tie not to change the Senate rules but to pretend that Senate rules mean something other than what they say.

JIPPING: That's a terrible way to run the Senate. It's terrible way to run a country. It's terrible way to run a city council. We ought to be honest and forthright in how we want government to run and we ought to do things the right way. So they'd have to do an inground around the rules and they'd have to end up with this, "Look, we've got the votes, and so we're going to get our way no matter what." It's not a good way to run the country and not a good way to preserve our freedom.

CORDERO: Tom, thank you so much. This was super helpful for me. Really illuminating, we appreciate it.

JIPPING: You're welcome.

CORDERO: That's it for this episode. If you didn't notice I'm suffering from some bad allergies this week, apologies for the stuffy nose and scratchy voice. Thanks for sticking with me. If you found this explainer on the filibuster helpful, please share it with your friends and family. You can find it on Apple Podcasts, the Heritage Explains page on Facebook, Instagram, and YouTube. We put our episodes everywhere to make it easier for you to listen and share. Thanks for listening, and we'll see you next week.

Heritage Explains is brought to you by more than half a million members of the Heritage Foundation. It is produced by CORDERO and Tim Doescher, with editing by John Popp.