Filibuster reform is coming—here’s how

In the America of 2021, a seemingly unstoppable force has met an apparently immovable object. Across the nation, state officials are acting with brazen impunity in curtailing voting rights. At best nakedly partisan, and at worst openly racist, legislators are proposing and passing, and some governors are signing, statutes that will strip the ballot from millions, seize the power to overturn election outcomes those partisans don’t like, and potentially tilt the political playing field for decades to come.¹ No wonder President Biden has declared it the “most significant test of our democracy since the Civil War.”²

“Despite majorities in both houses of Congress that have expressed support for voting rights legislation, the Senate filibuster stands in the way.”

Federal legislation could prevent this by establishing reasonable best practices for voter registration and early voting, and by barring the worst of the provisions.³ But that is where the immovable object comes in. Despite majorities in both houses of Congress that have expressed support for voting rights legislation, the Senate filibuster stands in the way.⁴ Overcoming a filibuster requires “cloture,” or a supermajority of 60 votes to proceed to debate and vote on a bill in the Senate.⁵ A preliminary test vote on a motion to proceed to one bill that would help address the voter suppression wave, S. 1, failed 50-50 on party lines.⁶Vice President Harris was available to cast the decisive 51st vote on the bill—but because of the filibuster, the cloture threshold fell 10 votes short, and the Senate could not proceed to vote on or even debate the bill itself.⁷ Senate Majority Leader Chuck Schumer brought up S. 1 again on August 11, together with two pieces of companion legislation that focused on redistricting and campaign finance. All three bills were filibustered by the minority.

We do not believe that the unstoppable forces of voter suppression and election subversion are, alas, going anywhere. We only expect those forces to intensify. In their face, doing nothing is not viable. Or as Senator Joe Manchin (D-W.Va.) has said, “inaction is not an option.”⁸ Senator Manchin has also been among those defending the filibuster as a vehicle for compromise.⁹ He has insisted that he will not eliminate it, but he has mused publicly and privately about how it might be modified.¹⁰

In this paper we assess a range of possible filibuster modifications. We believe the Senate will also consider these options as the pressure to do something to meet the crisis ratchets up. The history of the filibuster is the history of such changes, and so we begin with a survey of that history in Part I. In Part II, we catalog today’s principal proposals for modification, enumerating their pros and cons. We include remedies such as reducing the number of senators needed to open debate in the face of a filibuster; obligating the objectors to be present with one of their number speaking at all times during a filibuster; and shifting the burden to them to muster the requisite number of votes required to maintain the filibuster whenever challenged, instead of requiring the 60 who wish to proceed to so vote.

In Part III, we advocate for one additional option that the authors have previously written about, and that has been getting some significant proponents of late. We term that approach “democracy reconciliation.”¹¹ It is based upon the existing practice of budget reconciliation, which allows certain fiscal measures to have an up-or-down simple majority vote.¹² As we explain, we would craft a similar exception for voting measures, allowing them a similar opportunity to be voted upon by a majority. Reconciliation operates on a key principle known as the Byrd Rule, named after the late West Virginia Senator Robert Byrd.¹³ Because the current fate of the filibuster swirls around his successor, Senator Manchin, one may refer to this hoped-for new compromise of democracy reconciliation as “the Byrd-Manchin” Rule.

“It is hard to understand how the Senate will stand by and do nothing while our democracy is dismantled.”

We assess that the pressure to effectuate one or more of these filibuster reform proposals is building. As we explain below, influential figures inside and outside of Congress have renewed calls for a solution.¹⁴  It is hard to understand how the Senate will stand by and do nothing while our democracy is dismantled (and many senators’ jobs threatened). Still, it remains to be seen whether any of the fixes we discuss will be undertaken. Because the filibuster is a perpetual obstacle to reform, and because even if modified it is unlikely to be eliminated, we articulate the full range of reform options. But first, we begin with the history of this controversial procedure.

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