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With the U.S. Supreme Court appearing poised to overturn Roe v. Wade and legislation to protect abortion rights stalled in the Senate, talk of eliminating the filibuster has been a mplified again.
The filibuster, which may feel like an antiquated procedure, traditionally allows one senator to stall action by talking on the Senate floor. Now, however, just the threat of a filibuster is sufficient to stop a lot of legislation. A filibuster is ended by what is called cloture, a move that requires 60 votes, a difficult task when the Senate is essentially divided 50-50, as it is now.
Last week, for example, a vote to proceed to debate and consideration of the Women’s Health Protection Act, legislation that would make abortion legal nationwide and stop many state restrictions on the procedure failed on a 49-51 vote. All Senate Democrats except for West Virginia’s Joe Manchin voted for the measure. All Republicans voted against it. A traditional talking filibuster didn’t actually happen, but because there weren’t 60 votes to begin debate on the act, it failed and Democrats are unlikely to bring it up again.
Many supporters of abortion access are pushing for the elimination of the filibuster to pass the Women’s Health Protection Act. Similar arguments were made last year when voting rights legislation stalled in the Senate.
We understand — and share — the frustration with the overuse of the filibuster. Now, it essentially gives Republicans a veto over much of the Democratic agenda at a time when Democrats control the White House, House of Representatives and Senate (narrowly).
That, however, is the main point of the filibuster. It prevents lawmakers from enacting partisan laws that could quickly be reversed when party control of the Senate changes.
At a time when one party wants to make big changes it feels are essential, the filibuster looks like a big impediment. But, one party’s priorities may be the exact opposite of what the other hopes to achieve.
For example, if Democrats eliminate the filibuster and enact legislation to make abortion legal everywhere in the U.S. and to block state restrictions, that will be cheered as a victory by many. But, if and when Republicans gain control of the Senate, without the filibuster, they could undo that law, which would upend the “certainty” that many women thought existed around reproductive rights.
Beyond this, without a filibuster, Republicans could pass legislation to restrict or ban abortion, and act to rein in other rights, such as same-sex marriage, inter-racial marriage, the right to contraception and other rights that are now considered fundamental in America.
“Today’s annoying obstruction is tomorrow’s priceless shield, and we’ve got to think about it that way,” Sen. Angus King said last week about the possibility of eliminating the filibuster. “We’ve got to think more than a month or two weeks ahead.”
In 2017, Sen. Susan Collins co-led an effort to preserve the legislative filibuster, after then-Senate Majority Leader Mitch McConnell used the so-called “nuclear option” to end filibusters on Supreme Court nominees. Trump nominee Neil Gorsuch was then confirmed to the court on a vote of 54 to 45. The justice he replaced, conservative Antonin Scalia, had been confirmed by a 98-0 vote, and liberal Ruth Bader Ginsburg was confirmed with a 96-3 vote.
Previously, when Democrats had control of the Senate, they eliminated the filibuster for executive and many judicial nominees, but not for the Supreme Court. This has allowed more partisan, less qualified nominees to earn confirmation.
That’s one reason Maine senators, and many others, are leery of eliminating the filibuster.
“Limiting the ability of senators to engage in debate on legislative matters would give the majority party unprecedented power to push through major changes without careful deliberation or bipartisan cooperation,” Collins said on the Senate floor in January, when there was talk of eliminating the filibuster to pass sweeping voting rights legislation. “Such a move would have lasting implications as future majorities — whether Republican or Democratic — would have little incentive to work with the other party.”
The filibuster isn’t the only problem with the highly partisan Senate.
It sounds totally pollyanna-ish given the realities of the Senate today, but the only way to return to the days of compromise and dealmaking for the good of the American people is to change the dynamic in Washington. Ending the filibuster would actually be a move in the opposite direction.
