Episode 138: The Filibuster

This is Democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics, and the world around you. A podcast about educating yourself on today's important issues and how to have a voice in what happens next. Welcome to our new episode of This Is Democracy.

This week we are going to discuss a perennial topic of congressional politics and a perennial debate within our democracy, one that's becoming perhaps more important than it's been in a long time. The question of whether the U.S. Senate should continue to have a rule for a filibuster, which allows a minority, a small minority, in the Senate to prevent legislation and other matters from moving forward.

This is, as I said, an age-old question. It's central to American legislation in American politics, and we're very fortunate to have with us one of the leading scholars of Congress in general, and this topic, among many others.

My friend and colleague, Sean Theriault. Good morning, Sean. Good morning, Jeremi. Sean is a professor in the Department of Government here at the University of Texas at Austin. As I said, he is an internationally recognized, widely published author and speaker on the various pathologies of the U. S. Congress. Sean has written five outstanding books, many of which have won awards.

He began his illustrious career with the book The Power of the People, appropriately titled for a Scholar of Congress. I guess that's the aspiration of Congress more than the reality. He then published a really prescient book in 2008: Party Polarization in Congress, then another book that I really enjoyed reading. I read this book on the prize committee years ago–The Gingrich Senators–really, one of the best books at explaining how Newt Gingrich and his generation transformed the U. S. Congress.

And then more recently, The Great Broadening. And just this last year, a really important book for educating all of us about these topics, Congress: The First Branch. Sean also writes widely in every major newspaper. He appears on all kinds of news shows.

We could call you, Sean, Mr. Congress. How does that sound?

I'll take that moniker, although Congress isn't so popular these days, Jeremi. [Laughter] Yeah, well, I think it's safe to say, Sean, you are more popular than Congress. Thanks, Jeremi.

Before our conversation with Sean, as always, we have our scene setting poem from Mr. Zachary Suri.

Zachary, what is the title of your poem today?

With a single speech.

Well, let's hear it.

“It is a kind of arrogance that we think ourselves so sacrosanct that we build for our posterity, a temple of democracy, and hand any old fool a key. It is a kind of arrogance that we think ourselves so chosen that we steal votes from cities, for a slew of empty prairies, to send their any old Tom, Harry, Dick, and Larrys. It is a kind of arrogance that we think ourselves so holy that they can stand among the rubble that they burned right to the ground; and with their fist hollowed oaken desk of storied Asia's pound, and cry out for the freedom of ten hours for their mouths to sound. It is a kind of arrogance that we think are stars so well foretold to turn away the crying of a child for the banknotes, pristinely rolled. To rest our eyes on empty promises, where they rest in rot and mold, and wake up in a stupor, still in the middle of our speech. And sing to the great portraits about the horror to impeach. But the old poets of the tattered haunts, they know it all too well, and can recall of every second to you in a cafe with a screech, as their voices swell. Old men cannot solve our problems with a single speech.”

Zachary, that's lovely. What is your poem about?

My poem is really about the irony that we consider ourselves such an important and original democracy. And we think ourselves so great that we don't actually need to maintain our democracy and perform the basic maintenance of democratic institutions. And even while we have these very archaic institutions, like the filibuster, embedded in our very houses of government.

Well, that's just a fantastic opening for our conversation. Sean, is the filibuster an archaic element of Congress?

So first Jeremi, how dare you make us go after Zachary! [laughter] If I ever sign up to do this show again, I'm going to mandate that he go last, so I don't have to follow that! [laughter]

You're not the first guest to say that. So you should listen to your guests, Jeremi. How dare you sucker punch us off! [laughter]

Right, so the filibuster has ancient roots. There is no doubt about it. And the filibuster has stopped lots of good legislation over time, but it's also stopped lots of really bad legislation over time, so it serves a purpose. I mean, its purpose is now being debated, much more seriously than I think it has in quite a while, right? I'm not sure how long the Senate will still have its filibuster, but it's in place now, and it's having ramifications on all sorts of debates taking place in the Senate today.

And Sean, before we talk about how this filibuster actually works, why is it there?

It's not mentioned in the Constitution, of course. So how did we get this archaic institution?

Yeah, so right. I'll give you a common person's understanding of how it came to exist, and I'm a storyteller, Jeremi. This is the reason I think my students pay attention—You're a great storyteller—on occasion.

And so, the story is that Aaron Burr, who was vice president, was looking at the Senate rule book, and he came across this thing called the motion to order the previous question. And he's like, we never used this thing, we're just going to get rid of it. Right, so this is back in the early 1800s. And so, the Senate decides to delete this motion to order the previous question from its rule book. The House keeps its version, so the rules of the House and the rules of the Senate, back when they first got started, were more similar than they are today. And so, Aaron Burr and the senators decided to get rid of this motion to order the previous question.

And with that, it comes to an understanding that the only way that you can move legislation, then, is through this thing called the unanimous consent agreement. And, of course, unanimous consent agreement is really important because of its first word–unanimous. So in order to get the Senate moving on anything, it requires all senators to agree to move on that thing. And so, what that does is it empowers any individual senator to say, “no, I don't want to move on to that thing,” and as soon as they object, then they have control of the floor.

And then that sends us down a procedural set of steps, whereby the rest of the Senate, if there's sufficient numbers, can tell that senator that they lose control of the floor, and they go into a different set of procedures; whereby they can actually start debating something, and presumably, at the end of the legislative process, even passed something. Its origins, right? The reason we have a filibuster goes back to those early decisions made by Aaron Burr a long time ago.

So like Lin Manuel Miranda's play. I mean, Aaron Burr is the villain, in a sense here, right?

Well, if you think that the filibuster is a bad thing, he's the villain. [Laughter] Or is this the reason that the Senate becomes known as the greatest deliberative body in the world? I mean, I think that it depends on what side of the filibuster fence you're on as to whether or not he's the villain or the hero.

Right. It's extraordinary, though, Sean, isn't it? That as vice president, he had that much enduring power on the way the Senate operates.

Right, and this is actually a really good lesson for the Senate. Right? So this is a precedent that is set early, and the Senate really cares about precedent. And so, a decision that they make kind of just because they never used this thing, ends up having these huge ramifications that we continue to feel throughout the next two-hundred plus years of history. It's a really important lesson in path dependence, how a decision made early has enduring effects, as you say.

How does the filibuster work, Sean?

So it's hard, right? And you know this, Jeremi, but to educate the folks who might be listening to this, so the filibuster, really, in a congressional sense, just means the delay of legislation. And so, the different forms that a filibuster can take are various, right.

So when Ron Johnson makes them read every word of the 1.9 trillion dollar relief bill, the Congress is now in the process of passing; that is a form of filibuster, right? Because that is delaying the legislative process. And so, we could call that a filibuster, but it comes to have a more particular meeting when a senator presumably takes the floor and gives a speech.

And so we normally say that that is filibustering. But we could really claim the Ron Johnson's, again, based on the unanimous consent agreement, normally, a senator, the majority, they were to ask unanimous consent to waive the reading of the bill. And if no senator objects, then the reading of the bill is waived, but Ron Johnson object[ed].

And so, according to the rules of the Senate, that bill has to be read in its entirety, and so [it is] a form of filibuster. So In other words, what the filibuster is, is a delay tactic that any senator can use, in theory, as long as they wish to use. That's right, because so much of the Senate is done through these unanimous consent agreements, there are lots of opportunities for a senator to object, and as soon as they object, they have the floor.

So we normally think of the filibuster is when the senators start[ ] giving a speech, and the only way that a filibuster can be broken at that point is through this process called cloture, and cloture is a petition. And if the petition gets signed by sixty senators, th[e]n, they can attempt to invoke cloture, and then there will be a vote on closure. And then if cloture is invoked, then there is a different procedure again. And what can happen post-cloture? Usually, it's limited to one hundred hours of debate, and then they have to move the legislation after cloture is invoked.

There's been a lot of talk lately about how the filibuster has affected our democratic institutions, not just the Senate, but Congress as a whole. How has the filibuster in the past promoted majoritarian democracy, and how has it undermined that at the same time?

Yeah, so, and it's interesting that you use the word majoritarian.

So what the filibuster does because it requires sixty votes, there's a supermajority. And so what a supermajority means is that instead of only taking fifty votes plus the vice president to pass something, it requires sixty votes in the Senate for lots of different pieces of legislation.

And so when you require those ten extra votes, it means that you're empowering lots of people, usually of the minority party, to sign off on a piece of legislation, which gives them huge control over what the final words of that legislation look like, or whether or not the final words can ever be agreed to.

And so what it means is that it requires more than just a simple majority, as the House of Representatives is just a majoritarian institution. If you have, the number of yes votes are greater than the number of no votes, then the legislation is passed.

But the Senate requires those ten extra votes, and it's even more than that, in some instances, it's sixty votes, right. It's not three-fifths of the Senate, right? So it's a sixty vote threshold. So if their Senate, because of vacancies or deaths, senators not being in town, it's not enough that three-fifths of the Senate agree, but it's that sixty votes, right? So it's literally sixty votes.

Sean, as a scholar of Congress who studied this, I think, closer than pretty much anyone else, what have been the moments when the filibuster has actually built consensus?

That's the argument it seems to me you're making. At certain moments. It forces a party with fifty-two to actually reach out and find those on the other side, at least eight of them to go along with things. And one could see, in theory, the value in that.

So what moments do you see as the moments when this has been a source of consensus building?

Yeah, so I think that we could even just go back in time to a time that most of us remember, some of us more vividly than others. When the Affordable Care Act was passed because it required sixty votes in the Senate at that time, [which] had sixty Democrats. And so what it meant was that every single Democrat had to be in favor of it, which meant that those moderate Democrats from Nebraska and Louisiana had a lot of power in shaping the legislation in order to pick up those last few votes.

Now in some ways, that piece of legislation was improved, particularly for the states of Louisiana, Nebraska, but in other senses, we could say that it required a broader consensus from the Senate as a whole. Where if [it] only required fifty votes or fifty plus the vice president, we could have imagined that there might have been a more lively debate about the public option, but because it required those sixty votes, that was a nonstarter for enough of those Democrats that it didn't happen.

And if we go back in time right, we can go back to the Civil Rights Act of 1964, The Voting Rights Act of 1965. If we're only talking about the number of yeses being more than the number of noes, then you don't have to have particularly broad conversations among senators to figure out what wording actually works for enough of them to pass the thing.

But because of the super majoritarian requirement in the Senate, it just requires a broader conversation and this has ramifications; absolutely on the Senate. But it also has ramifications on the House because that legislation also has to be passed by the House.

And if in the process they're moderating that legislation, then it means that perhaps it's not passing two hundred and eighteen votes to two hundred and seventeen, but maybe it's passing two hundred and sixty votes to one hundred and seventy. And so legislation that passes with broader margins usually is more sustainable. It's usually broader. It[ ] usually has more buy-in from some of the people who ultimately might object to it, and so we think of it as being longer lasting.

It's a great point. And you can see that certainly, with the civil rights legislation that you mentioned going back to the ‘57 [Civil Rights] Act, that Lyndon Johnson, as Senate majority leader, muscles his way through. And then, of course, the ‘64 Civil Rights Act and the ‘65 Voting Rights Act. What's striking about those examples, Sean, which are terrific examples, is that, you're right, the legislation gains more permanence from having to go through the filibuster threshold.

But historians, I think, would argue, [it] took much longer to get that legislation. And Jim Crow, and of course, before that, slavery, last a lot longer than they might have otherwise because of the filibuster, so you can see both sides. Would you agree with that?

Oh, absolutely, right. So in part of the arguments that we're hearing today is that the filibuster should ultimately be revoked from the rules of the Senate, for perhaps most importantly, because of its racist past. Right?

So we don't get legislation on civil rights until the late 1950s and 1960s, in part because of the filibuster and in the power of the super majoritarian requirement in the Senate. That there was no way that you could [a] get sufficient number of senators to pass something, even though there might have been fifty-one votes much earlier.

How does an effective majority leader do this?

I mean, what do we learn from someone like Lyndon Johnson?

We certainly learned that the majority leader, we learned this from Mitch McConnell too, is incredibly powerful in the Senate.

But it just seems today, when the majority leader's main role is whipping his or her own party, how have they, in the past, been able to get through this threshold? What have they done?

Right? So it means that they're talking to their members, but because it's rare that we have a party having sixty votes just done outside of the aisle, it also requires them to have conversations across the aisle. And so what it means is that there has to be a far more open dialogue between the majority leader and the minority leader than we might otherwise think. And so, good majority leaders are keeping their caucus together, which minimizes the number of votes they're going to have to get from the other side, but they're also making sure that that dialogue happens.

What we see happening, though, interestingly, especially over the last ten or even fifteen years, is that there is another set of senators that feel particularly empowered because of the super majoritarian requirement. And they come to be known as gangs, where they form a group, a bipartisan group.

And usually, the number of people in the group is explicitly tied to the number of votes that it will take to invoke cloture, so that sixty vote threshold. So if the Democrats have, let's just say fifty-five votes, then the gang will be a gang of ten because they know that they need five Republicans. And so they usually form it in a bipartisan way. So five Republicans, five Democrats. But if the Democrats only have fifty-three votes, then it would require a gang of fourteen because you need seven Republicans and then the seven Democrats that they're negotiating with, ultimately, to try and pass legislation.

And so what the filibuster does, is it means that the conversations have to happen across the aisle in a way that certainly, since you've seen since since January 6 in the House of Representatives, there is almost no conversations happening across the aisle; even though, right, Nancy Pelosi's threshold isn't that much bigger than Chuck Schumer's threshold in the Senate. But she's able to, just with her votes alone, pass legislation where it doesn't require her to talk across the aisle the same way that it does for Chuck Schumer.

So I guess, Sean, this is what puzzles me because it seems that over time in most periods, these gangs that are formed, as you say, to control getting through cloture, getting the sixty votes that are necessary. They've generally had a moderating influence on legislation because they usually are a mix of Democrats and Republicans close to the middle.

Someone like the Senator Joe Manchin today from West Virginia, who is probably closer to the middle than many other Democrats would be in the Senate or Susan Collins, I guess on the Republican side for Maine. And they've had an enormous amount of influence on legislation over time, but it seems in the last decade that hasn't happened.

And it seems as if, the filibuster is being invoked, more often than not, just to stop any deliberation, for example, on gun control, to stop deliberation on voting rights.

Is that a newer phenomenon and if so, why?

So it is a newer phenomenon.

And so what's happening is that the parties are sorting at the same time that they're becoming more polarized, which means that there are far fewer Democrats representing Trump voting states and far fewer Republicans representing Biden voting states. Which means that the senators are less cross pressured, which means that forming cross party coalitions has become exceedingly more difficult.

So we used it right if we go back to even Richard Nixon's impeachment, the average percentage that the Democratic candidate for president, so in this case, McGovern would have gotten among states represented by Democrats was exactly the same as states represented by Republicans, right? So you had lots of Republicans who are representing Democratic leaning states, you had lots of Democrats who are representing Republican leaning states.

And so those types of conversations happen much more easily when the—senators feel cross pressure from their constituencies in their parties. But what we know is over time there are so few, right? So the two that you've already mentioned are two of the most obvious examples, and the next closest ones are really tough to come to.

Pat Toomey in Pennsylvania, right? Ron Johnson, Wisconsin, where the Democrat wins by a fraction of a percentage point. And so we don't think of them as being nearly as cross pressured as Susan Collins, representing Maine or Joe Manchin, representing West Virginia.

And at the same time, the margins in the Senate have decreased. So in order to get ten Republicans to go along with something that Joe Biden and Chuck Schumer and the Democrats want, you have to get to a pretty conservative Republican representing a pretty Republican voting state.

And so that's just really hard and so those conversations become much more difficult. So to move things like gun control or voting rights, it's just that much more difficult because of the particular political situations of the senators.

And what role, then, does the filibuster play in such a close Senate? Almost fifty-fifty?

How does the filibuster's role change when we get increasingly very close margins in the Senate, every Congress?

Yeah, so what it means is that you're not going to get major pieces of legislation.

The legislation can pass outside of budget stuff, right? So what we're seeing play out right now with the 1.9 [trillion dollar] relief bill is that because it's related to budget, there's a different process involving budget reconciliation, which means that it only requires fifty votes.

But things that don't require money spending like voting rights or gun control, it means that legislation is going to be so difficult to pass that many of us just can't even imagine right. So perhaps there's like at the margins changes, but you're never going to get a big thrust of new gun control or protection of voting rights.

The re emboldening of the Voting Rights Act of 1965 after the Supreme Court opinion, you're not going to get huge immigration reform. The Senate is a very, stability-inducing place, right? So it also means we're not going to get big changes from Congress to Congress.

Right? So right now the Democrats have a majority by Kamala Harris' vote, and if in four years, the Republicans have the same majority, we're not going to get big flips and legislation because of the super majoritarian requirement.

So over time, Sean, I think, as a consequence of a closely split Senate for quite a while and the difficulty of getting major legislation through there has been a chipping away of the filibuster. The budget reconciliation itself, I think, is one example of that.

Certainly, as I recall, the Democratic Party under President Obama eliminated the filibuster for judicial appointments short of the Supreme Court. And then, of course, the Republican Party under Donald Trump eliminated the filibuster for Supreme Court nominees, which is how Trump was able to nominate and appoint three different members of the court.

Do you foresee a continued chipping away of the filibuster?

Do you foresee an elimination of it or just leaving it as it is?

So Jeremi, I think the filibuster's days are limited, right? So again, the filibuster in the strictest sense.

Of course, delaying legislation is always going to happen, right? But this process that we've been talking about, especially most recently, its days are limited. Right now, I think that the filibuster is still on the books because of a couple of senators, so Kristen Cinema and Joe Manchin said that they liked the filibuster in any type of process.

To get rid of the filibuster would require a majority vote, and so, the Democrats don't have it right now. So if the Republicans take control of the Senate after the 2022 election, and they get it by a couple of votes, I think that it continues to exist only because they don't have unified government.

But I think as soon as a party has unified government, that is, control of both the House and the Senate and the White House, and they have a sufficiently large margin in the Senate, the filibuster will be dead, right?

So if the Democrats, let's just say, win control, keep control of the White House, and let's say they pick up seats in the 2022 election, so that they have fifty-three or fifty-four votes in the Senate, and still a majority in the House, I think the filibuster would be dead.

Or if, in the 2024 election, Republicans capture all three and they have fifty-three or fifty-four votes and they don't need Susan Collins and maybe one other Republican senator, then I think the filibuster is dead.

So I think its days are numbered as soon as a party has unified control and they have sufficient majority in the Senate, then then the filibuster will be reformed in the Senate.

Or Sean, and this would be a road toward the end you're describing, is it likely that we will see more significant chipping away of it just in the coming months, for example, with Democrats wanting to be able to pass voting rights legislation?

Yeah, and what's interesting to me is, I think, as we've seen, the state legislatures invoke some pretty awful new rules with respect to voting, I think the more ugly process...takes place in state legislatures.

I could imagine Joe Manchin and Kristen Cinema coming around, but I can't imagine the carve outs for things like voting rights. And then I can't imagine they would then carve out something to do with gun control or right, like I just can't imagine these carve outs.

But I could imagine them implementing is a particular process. And maybe with a wink and a nod and some type of budget ramifications, them trying to include voting rights within the budget reconciliation rules that currently exist, right? So maybe it has to do with the federal government giving states money to do x, y, or z, so that voting rights certainly now would then have financial ramifications such that it could be read under budget reconciliation.

And I guess this is my last question. Sean, do you foresee the Senate moving to what Joe Manchin himself has mentioned, which is the possibility of at least making those who want to invoke the filibuster make them work harder, make them actually stand up and speak right now?

Oftentimes, right, those who are willing to filibuster simply threatened to do it, and the Senate moves on. But do you foresee them at least raising the pain threshold for filibusterers, as Manchin has suggested?

So I can imagine them doing it in very limited ways, the problem with that and you've already alluded to this the power of the majority leader to set the agenda.

So if the Senate is meeting, then Chuck Schumer wants to use the meeting time of the Senate in a way to advance the Democratic agenda. If he calls up bills that will merely be filibustered and they end up wasting twenty-four, fourty-eight hours, a week because of a filibuster, then that means he's not able to move all the other things that Chuck Schumer wants to move, many of which don't require a sixty vote threshold, right?

Judicial appointments, filling out the rest of President Biden's Cabinet, so the plenary time on the Senate trades off with the filibuster time. And so for every minute that Chuck Schumer is allowing a filibuster, right, raising the pain threshold, forcing Republican senators to talk endlessly on the floor of the Senate, means that he's not able to do all the other things that the Democrats want to do in the Senate.

And so, right, it's a good talking point, but I just can't see it playing out, except and perhaps in very limited cases. It's a great insight, Sean, that there is a trade off in terms of time for the Senate and the majority has very limited time to get things done, especially when you look at the electoral clock with a 2022 election coming up.

Zachary as we close here, what are your thoughts on this?

There's a younger generation like yours. First of all, do you pay attention to this?

Is this something that can motivate people?

I mean one thing Sean is saying is that the filibuster's days are numbered. That certainly means that this is an issue people should pay attention to, do you think that's that's the case?

I do think that's the case. I think a lot of people in my generation are very dissatisfied with the slow pace of everything in the United States Congress. And especially those who feel aligned with the Democratic Party in particular, I think are very frustrated that many of the reforms that young people have pushed the hardest for are being stalled because of these legislative rules. And so I think that you will see a lot more attention to these issues from young people and young voters who are quickly becoming a very important voting bloc in our elections.

Great point. Is that accurate, Sean, do you think?

So it is accurate, but I would warn both Zachary and folks of his generation and people that have his politics, that while it may be beneficial to your side today, in four years when the Republicans have unified control, you could imagine them getting rid of lots of things that the Democrats would not want to put in place. And perhaps even going back further, right?

Not only stripping away some of the Biden administration's achievements, but even going back to the Affordable Care Act or other policies that have lots of benefits to not only Democrats, but also a good number of Republicans.

For sure.

And there we have the reason the filibuster has survived as long as it has.

Sean, this was fantastic. You offer such detailed and insightful knowledge on Congress and related political matters. And you're so good at explaining things and also making it fun and interesting, so thank you, Sean, for joining us today.

Oh, thank you for having me on, Jeremi. It's a pleasure talking to you and Zachary today. And Zachary, thank you for your poem, as always, and most of all, thank you to our listeners for joining us for this episode of This is Democracy.

This podcast is produced by the Liberal Arts ITS Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harris Komotini. Stay tuned for a new episode every week. You can find This is Democracy on Apple Podcasts, Spotify, and Stitcher. See you next time!