Vice President Kamala Harris made a splash last month by supporting the creation of a “carve-out” from the filibuster to codify Roe v. Wade nationally. The vice president's comments were echoed by other Democrats, including Senate Majority Leader Chuck Schumer of New York. Voting Rights Bill Filibuster Carveout.
Former President Donald Trump also supports reducing the filibuster. Back in 2018, he told Senate Republicans: Eliminate the filibuster while they still have the majoritypredicted that Senate Democrats would try to do so the next time they take control.
Trump was vindicated in 2021, when Democrats won the White House and both houses of Congress. Senate Democrats have launched an effort to create an “exception” to the filibuster that would allow them to pass the same voting rights bill that Schumer and his allies are pushing today. They were blocked by Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (West Virginia), two Senate Democrats who refused to go along. Notably, both Sinema and Manchin are scheduled to retire at the end of this Congress.
Presidential candidates from both parties are on record as supporting reducing or completely abolishing the filibuster, and there will be significant pressure to change it next year, regardless of the outcome of the November election. There is a strong view that
That would be a mistake.
Many voters see the filibuster as an obstruction tactic, a way for a committed minority to thwart the will of the majority. While that may be true in some situations, when understood correctly, the filibuster is actually a tool for compromise.
In practical terms, the filibuster requires 60 votes in the Senate to pass most major legislation. Except in rare cases where one party wins a majority of seats, that means the party in power has to work with the other party to get things done. It, in turn, has the beneficial effect of softening positions and forcing consideration of opposing views. The fact that a bill doesn't get 60 votes doesn't mean it won't work forever. That means you need to change if you have any hope of ultimately passing.
Both parties understand this. Drafting and negotiation takes place over a 60-vote threshold. Senators know that some bills never go anywhere and are purely for “message” purposes. But other bills, those intended to eventually become law, are drafted with the goal of winning at least a certain number of votes from the other side.
History proves this. Both parties have used the filibuster, or the threat of a filibuster, to win concessions from the Senate majority and ultimately shape legislation toward passage.
For example, in 2015, when Senate Democrats were in the minority, they used the threat of a filibuster to get votes for additional amendments to the Every Student Succeeds Act, the most important federal education reform in a generation. . The availability of the filibuster did not block the bill. Instead, they forced compromises, expanded support, and ultimately improved the final product. This example illustrates one very important use of the legislative filibuster that rarely gets attention. This would allow the minority to force a vote on amendments to bills that are likely to pass.
Another example was the 2020 coronavirus relief package known as the CARES Act. Once again, minority Senate Democrats used the filibuster to Force the Senate Republican majority to include some of its priorities The final bill ultimately passed 96-0.
Senate Republicans have also used the filibuster to enact legislation rather than block it. The 2021 Bipartisan Infrastructure Package is one example. After the bill failed to pass the 60-vote threshold the first time, Democrats and Republicans began intense negotiations that ultimately resulted in a revised version. Receive 18 Republican votes to advance. The bill was then easily passed.
Indeed, senators from both parties have filibustered a wide range of social and economic issues, foreign policy and national security, and energy and environmental policy issues, among others.
That's healthy. A minority should not decide issues that involve fundamental changes in our country. The goal should be to pass broadly popular legislation, rather than extreme policies that can be passed with the narrowest possible votes. The filibuster requires senators to pursue the former approach, at least if they hope to pass legislation.
It is unfortunate that presidential candidates of both parties ignored this lesson. Certainly, the temptation to do so is understandable. The last thing you want when you're in power is dealing with a troublesome minority, and both candidates want a future in which they have the power to decide.
But a true long-term perspective recognizes that political conditions change and that majorities are not permanent. The rules that prevent you today will protect you tomorrow. The filibuster forces compromise, and in a country as large and diverse as ours, that's a good thing.
The argument for creating a “carve-out” of the filibuster is just as false as the argument for abolishing the filibuster altogether. Creating “exceptions” for specific issue areas will inevitably lead to the complete elimination of the filibuster. Some senators will ask for exceptions to gun control, others for border security. There is no principled line to be drawn between issues that merit a filibuster exception and those that do not. Once a precedent is established for creating a carve-out, the majority that wants to pass the bill will not be constrained.
The filibuster is the Senate's key system for forcing compromise and has been a check on extreme polarization on both sides for decades. Removing it would be a grave mistake. Even if our two major party presidential candidates don't realize that, voters should.
So when you vote in the Senate this November, pay attention to what the candidates say about the filibuster. Watch to see if they keep this important part of our political system or dismantle it. And choose candidates who recognize the value of promoting compromise, including preserving the legislative filibuster.
Gordon Smith served in the United States Senate from 1997 to 2009. Martin B. Gold is the author of Senate Procedure and Practice. Both are directors of the Orrin G. Hatch Foundation.
