A digital illustration of the Capitol split in two with a calendar

Why Democrats want to change the Senate’s filibuster rules

By Christopher Hickey and Zachary B. Wolf, CNN
Updated January 7, 2022

The story of modern Washington is the story of the filibuster.

That’s the tactic of dragging out debate in the US Senate to make it harder to get things done. Thanks to Senate rules, whichever party is out of power has the ability, through filibusters, to quash nearly everything the in-power party wants to do unless the minority party agrees.

In the absence of any sign Republicans will work with Democrats to pass voting rights legislation, Senate Majority Leader Chuck Schumer has promised a vote on changes to filibuster rules by Martin Luther King Jr. Day on January 17. Changing the rules would allow senators to pass some legislation with a simple majority. But first, Schumer needs to convince the Senate’s most conservative Democrats, West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, to get on board.

Now, overcoming a filibuster to pass legislation in the Senate takes 60 votes — votes that Democrats don’t have without Republicans’ help.

Three of the most substantial legislative accomplishments of the past 12 years — President Joe Biden’s Covid-19 relief bill, former President Donald Trump’s tax cuts and former President Barack Obama’s Affordable Care Act — were only achieved by one party finding a way around the filibuster.

Here’s how the filibuster has made accomplishing anything on Capitol Hill incredibly difficult:

What is a filibuster? A filibuster is any use of obstructive tactics that would prevent a bill or measure from coming to a vote. Filibusters are most famously thought of as long-winded speeches like in “Mr. Smith Goes to Washington” but there are no clear rules on what form a filibuster should take, including how long it lasts. As a result, the mere threat of filibustering a bill can be enough to delay or block its passage.

Photo credit: Everett Collection

How can a filibuster be beaten? The filibuster is not in the Constitution and is generally recognized as an accident of Senate rules. A bill is considered “filibuster-proof” if it has the support of at least 60 senators (it used to require 67 until a rule change in 1975). But few bills meet that criteria in today’s hyper-partisan political climate, especially with the Senate’s current 50-50 split between parties.

Note: Sens. Bernie Sanders of Vermont and Angus King of Maine are shown here as Democrats; they are Independents who caucus with Democrats.

The only formal rule that can end a filibuster is the second paragraph of Senate Rule XXII, otherwise known as the cloture rule.

Invoking cloture just places a time limit on a bill’s consideration and provides it with a path to move forward.

Fifty years ago, cloture was almost never invoked. Today, filibuster threats are so common, cloture is required for nearly everything the Senate does. An added wrinkle is that bringing a bill to a vote requires unanimous consent — in other words, all 100 senators have to agree to hold a vote on a bill, an amendment or a presidential nomination.

If every senator is not on the same page, then the bill can only advance by breaking a filibuster on a motion to proceed — and that time-consuming process can take at least two days just to begin debate. In today’s Congress, these votes to bring bills to a vote are often just another chance to filibuster.

Cloture rules have changed over time. The cloture rule was revised in the 1970s to require 60 votes instead of 67. In 2013, Democrats under former Senate Majority Leader Harry Reid changed the voting precedent through what’s known as the “nuclear option“ to confirm Obama’s Cabinet nominees with a simple majority rather than a 60-vote supermajority. Republicans then used that same option in 2017 to advance Trump’s Supreme Court nominees. Those are the two exceptions; a supermajority is required to vote on and approve any other kind of Senate business.

Invoking cloture takes time. Lots of time. Even when cloture is invoked to end a filibuster, the time needed for the cloture process to play out can take time away on the calendar from other legislative business. Even after cloture is invoked, passing a bill can still take two weeks if the minority party insists on dragging things out.

Let’s take a look at the cloture process for a typical bill. (And, remember, senators are often not in session on Mondays and Fridays, so this calendar is very much an idealized sample schedule.)

Step 1: Say Democrats have a draft bill ready for a vote on the Senate floor, but they expect some level of opposition. Because voting on a bill requires the approval of all 100 senators (“unanimous consent”), on Monday, a senator instead takes the extra step of moving to take up the bill for consideration. That’s a motion to proceed, the act of bringing the bill to the floor when unanimous consent can’t be reached.

Step 2: A motion to proceed requires a vote and can be filibustered. If a filibuster has already begun or is expected, the senators in favor of the bill can present a cloture motion that same day.

Step 3: Cloture would end debate, stopping the filibuster, but it also requires a vote. Under the cloture rule, however, that vote can’t happen until two days later, on Wednesday, the second day of session after the motion is made.

On Wednesday, the Senate votes to invoke cloture on the motion to proceed. Assuming the bill’s supporters succeed in securing 60 votes, the filibuster is shut down.

If the cloture vote is a success, a 30-hour period of consideration begins before senators can first vote on the motion to proceed. This includes time used for debate, roll call votes, quorum calls and other such actions.

But that’s 30 session hours, not 30 chronological hours.

Assuming the Senate keeps to eight hours in session per day, Monday through Friday, that period lasts nearly four workdays. By the time they vote on the motion to proceed (step 4), it’s now mid-afternoon on the following Monday.

If that vote to proceed succeeds, the bill can head to the floor for consideration. Senators who oppose the bill might not be done yet. Now they have a second opportunity to initiate another filibuster, this time on the bill itself.

Stopping this requires those in favor of the bill to file another cloture motion (step 5).

Step 6: Like with cloture on the motion to proceed, the vote to invoke cloture on the bill itself takes place two days after the motion is filed, on Wednesday.

If the bill’s defenders garner enough votes for cloture, then this begins another 30-hour period of consideration before the final vote can take place.

Step 7: When the vote to pass the bill begins, it’s now the following Monday. That means the Senate has spent 15 calendar days on these filibuster-preventing actions before they can vote on the bill itself.

The Senate can speed up the process, but only if there’s an agreement from all 100 senators to quickly schedule a vote.

Cloture ends filibusters because it ends everything else, too. According to Senate Rule XXII, once the Senate invokes cloture, “then said measure, motion or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.” In other words, senators have to hit the brakes on everything but that clotured bill until they’ve brought the bill to a vote.

Now, instead of debating legislation one bill at a time, lawmakers cram as much into every bill as they can. There are fewer bills passed. They’re just much, much longer. The 80th Congress of 1947 and 1948, which President Harry Truman famously attacked as the “Do Nothing Congress” during his 1948 re-election campaign, enacted 906 bills. That’s more than three times the 283 bills that the 116th Congress produced in 2019 and 2020.

Why not end the filibuster? Republicans don’t want to give up their power. And some Democrats, like West Virginia’s Manchin, warn that if Washington seems hyper-partisan now, it would get much worse if one party could pass a bill without help from the other. His vote would be necessary to reinterpret the rules. Manchin and Biden both suggested earlier in 2021 that Congress revert filibusters to the talking-only, Mr. Smith style that was the norm before the 1960s. Pressure could build on Manchin, however, if the filibuster keeps Democrats from delivering on Biden’s campaign promises.

Ahead of the Senate vote on whether to establish the Jan. 6 commission, CNN asked Manchin if he would invoke the nuclear option to blow up the filibuster if Republicans block the bill.

“No,” he told CNN. “I can’t take the fallout.”

That all but ensures that the filibuster is here to stay.