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As debates surrounding the merits of “the filibuster” increasingly command attention in Washington, those outside of the Capital Beltway may wonder why this topic has become such a lightning rod. The reality is, the fate of this arcane legislative rule will affect how Congress legislates and—as a result—every industry and community across our country.
So, what is it? To filibuster in the U.S. Senate is to delay a vote on legislation by a senator occupying the floor without interruption in debate. The rule originated in the early 1800s and was updated most recently in the 1970s. The modern filibuster is known as a “silent filibuster,” where senators are not required to physically occupy the Senate floor to continue debate. Instead, 60 votes are required to end debate and formally consider legislation.
Why is it important? The 60-vote threshold requires senators to build consensus on legislation of national importance. It gives the party in the minority a seat at the table and leverage in negotiations, promoting deliberation and bipartisanship. Importantly, it helps differentiate the Senate from the majoritarian House of Representatives. James Madison famously described the role of the Senate as “a necessary fence” against “fickleness and passion.” In the modern political era, the filibuster has served as that fence.
What’s the current debate? Some Democrats are pushing for a change in the filibuster rule to allow more legislation to be considered by majority vote rather than the 60-vote margin. Importantly, process-wise, it takes just a simple majority vote for the Senate to change its rules and create a new precedent for the filibuster if the majority decides to do so.
Hasn’t this happened before? The process of changing what is subject to the filibuster has been referred to as the “nuclear option.” It has been invoked twice in recent history to change Senate rules. In 2013, the then-Democratic-controlled Senate eliminated the filibuster for all executive and judicial nominees, excluding Supreme Court nominees. In 2017, the Republican-controlled Senate extended that treatment to Supreme Court nominees.
What are the options being considered now? Debates within the Democratic party are ongoing as to whether they should once again use the nuclear option to eliminate the filibuster. Another option being considered is a return to an old form of filibuster known as the “talking filibuster,” where senators must physically occupy the Senate floor in order to continue debate.
Why should businesses care? The filibuster prevents rash, ill-considered partisan bills from quickly becoming the law of the land. For example, within two months the House of Representatives has passed a $15 national minimum wage and a radical rewrite of U.S. labor law known as the PRO Act. Because of the filibuster neither can become law as currently written. In a world without the filibuster, both might be the law of the land…that is until a Republican unified government repealed them.
In fact, without the filibuster we will likely see major rewrites of federal law every four to eight years. Every presidential administration since Bill Clinton has had at least two years of single-party control of government. Without a filibuster, each party could simply repeal the laws enacted by the other party and enact their own policies. We already see this with regulations where the policy shifts back and forth depending on which party control the White House. How can business make investment decisions that take 10 or even 20 years to bear fruit if the rules of the road are constantly changing?
It is hard to imagine a more polarized Washington, but that is what a Senate without a filibuster would likely produce. There is no reason to compromise when you can simply jam through your agenda. Independent-minded Senators will quickly lose leverage and will come under the pressure of the party to “fall in line” just like members of the House do today. This will only further divide our nation.
The U.S. Chamber is activating our Federation and coalition partners in support of the filibuster. You can join our efforts by letting your Senators know how you feel through the form below.