Days away from the election, you likely have heard all the scenarios that could propel either Democrats or Republicans to victory. So rather than add yet another possible path to the mix, let’s pretend, for the sake of argument, that a “blue wave” washes over the nation, carrying former Vice President Biden to the White House and giving him a majority in both the Senate and House of Representatives.
The question then becomes how big is the Senate majority and will it be big enough to allow Biden to enact some of his more ambitious agenda items?
The Democrats are a far cry from achieving a “supermajority” of 60 or more votes necessary to break any filibuster and, if past is prologue, then Minority Leader Mitch McConnell (R-KY) will use all the tools at his disposal to try to stop the Democratic agenda. This concern gives rise to talk of ending the filibuster, the procedure that gives any senator the ability to prevent the Senate from moving forward on legislation. While this seems like a simple thing for a new majority to do at the beginning of the Congress, it is not procedurally or politically easy.
When Congress was formed in 1789, both the House and the Senate had the ability to cut off debate with a simple majority vote through the previous question motion. In 1806, the Senate decided to eliminate the previous question motion from its rulebook at the suggestion of Vice President Aaron Burr, who thought it was redundant. This inadvertently led to the creation of the filibuster, although this loophole was not used until 1837.
During its 200-plus-year run, there has been recurring talk about ending the filibuster. Eliminating the filibuster by changing the rules would require two-thirds of the Senate or 67 votes if all 100 senators are present and voting. It is unlikely that any senator in the minority would vote to give away their leverage over the Senate’s agenda.
Another option would be for Democrats to modify the filibuster by banning it on certain proceedings or requiring senators to filibuster in person. Modified filibuster rules are currently in practice for judicial nominations. Modifications may include, for example, eliminating the filibuster on “motions to proceed,” which are the motions that allow the Senate to move to debate. This preserves a senator’s right to object to passage of the underlying question without preventing the Senate from considering it at all.
A new Senate majority could limit the time for debate as has been done for the annual budget resolution, to prevent arms sales to foreign governments or to ratify trade agreements. Because a two-thirds majority is required to change the rules, the new majority would have to create a new “precedent.” This process, agreed to by a simple majority, entails the Senate’s presiding officer ruling on a point of order, then appealing that rule and voting to overturn it. Then-Majority Leader Harry Reid (D-NV) used this process in 2013 for certain judicial nominations, and Majority Leader McConnell used the same process in 2017 for Supreme Court nominations.
The Senate also could return to a practice that was abandoned in the 1970s that entailed senators who objected to legislation to appear in person on the Senate floor. This was because the Senate considered bills in sequence and could not move on to other business until the current question was addressed. A change in Senate procedure proposed by then-Majority Whip Robert Byrd (D-WV) allowed the majority leader under unanimous consent, or with agreement of the minority leader, to set aside the pending question and move on to other business. Restoring this rule would preserve the filibuster but force senators to be specific when they object.
Senators who have expressed concerns or objections to changing the rule include Sen. Joe Manchin (D-WV), who has stated that he is against changing the filibuster, as well as Sens. John Tester (D-MT) and Angus King (I-ME), who have suggested their preference of modification. It is worth noting that vice presidential nominee Sen. Kamala Harris (D-CA) has indicated her support for eliminating the filibuster. The conventional wisdom is that the Democratic leadership would wait to see how opposition to a potential Biden administration agenda materializes before moving forward with a change.
Last year, in an interview with the New York Times Editorial Board, Biden stated that he was against eliminating the filibuster as he believed there were enough issues that both parties could reach consensus on without removing it. However, in mid-July, he told reporters he would be open to the idea, “depending on how obstreperous [Republicans] become.”
After news of Justice Ruth Bader Ginsburg’s passing, Sen. Ed Markey (D-MA) tweeted that he is in favor of abolishing the filibuster, and Minority Leader Chuck Schumer (D-NY) said on a conference call that, “nothing is off the table.” In late July 2020, former President Barack Obama called for the end of the filibuster during his eulogy at Rep. John Lewis’ (D-GA) funeral, citing it as, “another Jim Crow relic.” Sen. Bernie Sanders (I-VT), who was originally against abolishing the filibuster, later agreed with Obama’s statement.
But is this support enough? Should there be a Democratic sweep next week, there will be high expectations for accomplishing a blue agenda with staying power (e.g., health care, the environment and even statehood for the District of Columbia), and removing the filibuster may be the play a Democratic Senate would make to push its priorities forward.
As the old saying goes, knowledge is power. Understanding how the filibuster could help or hurt your legislative priorities now will ensure they aren’t swept away by a blue wave in the next Congress.
David Adams is a managing director at Cogent Strategies. He served as Assistant Secretary of State for Legislative Affairs and as Deputy Assistant Secretary for House Affairs to Secretary of State Hillary Clinton in the Obama Administration, and had a distinguished career on Capitol Hill. Whitney Gulvin is a research associate with Cogent who previously served both the European Parliament and the U.S. Senate. Her research and analysis has supported policymakers on two continents on issues including counterterrorism, tax and banking.