Democrats and Republicans differ on how they view the longstanding use of the Senate filibuster, but one thing appears clear: the rule gives the minority party power to block almost every bill that comes up in Congress.
The filibuster, part of parliamentary rules in the upper chamber, allows for unlimited debate on a measure – unless at least 60 senators call for cloture, a procedure that ends debate and allows the measure to come up for a vote.
There are a few exceptions, such as budget reconciliation legislation, that only need a simple majority of 51 votes to pass.
Former South Carolina Senator and segregationist Strom Thurmond holds the record for the longest individual filibuster in history. His 24-hour, 18-minute oration aimed to block the Civil Rights Act of 1957.
At the funeral for Congressman John Lewis in July 2020, former Pres. Barack Obama decried the filibuster as a relic of the Jim Crow era – a term referring to state and local statutes that in practice denied equal opportunities to African Americans after the Civil War.
But some view the filibuster as a valuable tool when used properly. In February, Utah Sen. Mike Lee advocated for its preservation during an interview with the conservative Heritage Foundation.
“The filibuster in reality is a good thing … one that encourages both sides to come together and achieve a degree of consensus and compromise,” Lee said.
A tweet from Igor Bobic of the Huffington Post in late March indicates Utah Sen. Mitt Romney’s similar support for the filibuster.
“It’s essential we work together to find common ground. That’s how the nation works,” Romney said. “The idea of saying hey let’s no longer have the requirement for bipartisanship or consensus would be totally out of step with our history.”
But both parties, when holding majority status in the Senate, have sidestepped the filibuster to gain ground.
In 2013, the Democrat-controlled Senate dropped the threshold from 60 votes to 51 to confirm federal judicial nominees and executive-office appointments.
Then in 2017, the Republican-dominated Senate went further, lowering the threshold for confirming Supreme Court nominees. This move allowed former Pres. Donald Trump to place three conservative justices in lifetime appointments on the nation’s highest court.
Matthew Burbank, a political science professor at the University of Utah, spoke to the filibuster’s effect on most federal legislation.
“Everything else that hasn’t already been ruled off the filibuster table – Supreme Court nominations, lower court nominations, confirmation for cabinet positions – is at the mercy of the filibuster,” Burbank said. Given the very close margins between Democrats and Republicans, “nothing else gets passed, and the Senate becomes a political graveyard.”
In March, Senate Democrats used budget reconciliation to pass the $1.9 trillion Covid-19 relief package – minus the $15 minimum wage Democrats wanted but Republicans vehemently opposed.
Senate Parliamentarian Elizabeth MacDonough ruled that the minimum wage increase did not qualify and would have to be considered separately. Then on Monday, April 5, MacDonough ruled that Democrats could use budget reconciliation for their hotly contested $2 trillion infrastructure plan.
What if?
Imagine what might happen if the filibuster got “nuked.”
Senate Republican leader Mitch McConnell has. During a Senate speech in March, he warned that retribution would surely follow: “Nobody serving in this chamber can even begin — can even begin to imagine — what a completely scorched earth Senate would look like.”
Sen. Lee, when speaking to Tommy Binion of the Heritage Foundation, rattled off a litany of bills he expects Democrats to pass if suddenly filibuster-free, including a $15 minimum wage, statehood for DC and Puerto Rico, an expanded number of Supreme Court justices and higher taxes on the wealthy.
Binion pledged that “we will do all in our power to protect the filibuster.”
However, not everyone feels that same fondness for a rule that defers so many bills to a future Congress.
Can we fix it now?
In a phone interview, Jeremy Robbins, executive director for the New American Economy, lamented that “we haven’t changed our immigration system since 1965, even though it is universally acknowledged by people on the left and the right and in the center to be broken. We haven’t updated it in a real way.”
As Robbins sees it, immigrants add immense value to the economy, to main street vitality, to arts and culture, and to the overall resilience of communities across the country.
In January, his research and advocacy organization hailed the U.S. Citizenship Act of 2021 that the newly inaugurated Biden-Harris administration handed to Congress.
“Creating a path to citizenship for the undocumented, modernizing our visa system, and addressing the root causes of migration are overdue changes with broad public support,” Robbins said in a statement on his organization’s website, adding that such actions would “reaffirm our values while making our country safer and more prosperous.”
But over the years, immigration reform has become too hot to handle.
“It’s an easy issue to scapegoat,” as in “here’s who to blame,” Robbins said. “It’s a device people use in elections, so it’s become really complicated.”
Additional immigration-related bills now sit before the 117th Congress, among them two regarding “dreamers” and farm workers that have already cleared the House. Robbins holds hope that substantive Senate action can take place, in spite of the partisan gamesmanship.
“You won’t find a member in Congress that isn’t sympathetic to the kids who were brought here at two years old, six years old,” Robbins said. “They’ve studied hard, graduated high school, they’re working or are in college … they’re doing everything the right way.”
The need for importing farm workers is equally indisputable, Robbins added.
Using 2019 U.S. Census data, the New American Economy mapped the impact of immigrants: they made up 13.6 percent of the population, contributed over $492 billion in taxes, and more than 3.2 million were entrepreneurs. Over 25 percent of the nation’s home healthcare aides are foreign born, along with 15 percent of U.S. nurses.
According to a December 2017 article by Ian Hathaway of the Center for American Entrepreneurship, 43 percent of U.S. Fortune 500 companies were founded by immigrants or children of immigrants.
“Immigration is one of those few issues where Republican and Democratic Senators are actually meeting, trying to get to yes,” Robbins said.
Natalie Gochnour, director of the Kem C. Gardner Policy Institute at the University of Utah, views immigration reform as both an economic and moral imperative.
“It needs to happen. Unfortunately the dynamics in Washington make me very pessimistic about when it will happen.The filibuster does get in the way of that,” Gochnour said, noting the need to find a path forward. “I believe we’re the only major democracy in the world that doesn’t do routine business by majority vote.”
Winning at all costs
“The filibuster is an odd institution in the sense that it’s not in the Constitution,” the U of U’s Prof. Burbank said.
But what some believe began as a parliamentary tool for thorough, reasoned debate has become an effective barricade for blocking most majority legislation.
“That changes the nature of what we think of as democracy,” Burbank said. “Getting 60 Senators to agree on anything becomes such a procedural hurdle that the Senate passes almost nothing of substance.”
That impasse is often powered by the need to toe the party line.
“Particularly for Republicans … the thing you want to avoid is having somebody challenge you in a primary election by claiming to be more conservative,” Burbank said.
Even with widespread support from politicians, faith and business leaders, practical and humane fixes to the nation’s immigration legislation have not been able to happen.
The Heritage Foundation is vigorously opposed to the Biden Administration’s immigration plan. And a recent three-minute video warned that people won’t get the truth from the media.
The video detailed three reasons why the plan is allegedly full of madness: it would give amnesty to over 20 million illegal immigrants, it would replace the term “illegal immigrants” with “noncitizens,” and ICE would effectively be abolished because agents could only detain spies, terrorists and convicted, aggravated felons.
It further warned that the U.S. would become a sanctuary country under the Biden plan and urged people to spread the word about its dangers.
With more than a decade of tracking the benefits of immigration in Salt Lake City and across the U.S., Robbins said he’s seen how societal upheaval and fear stoke the political divide that stalls legislative progress.
“The filibuster plays into it because our politics are structured in a ridiculous way right now,” Robbins said. “If Mitt Romney loses his seat, he’ll lose it in a primary to someone who’s going to attack him from the right.”
