How to Fix the Filibuster Without Breaking Congress‬

Last updated on March 22nd, 2021 at 06:09 am

The filibuster is a historical accident. Many experts believe that it is ruining Congress and hurting democracy.  It allows a small political minority to run roughshod over the majority and stop things that the American people need and want. But Senate Republican leader Mitch McConnell says that if Democrats get rid of it, Republicans will grind everything to a halt and leave a “scored earth Senate.”  Is there any way out of this mess? Norman Ornstein is one of the leading scholars in America on Congress.  He has three ideas for fixing the filibuster without creating a total meltdown in American government.

Listen to the full conversation here:

Matt Robison: Why does the filibuster matter?

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Norm Ornstein: If you care about outcomes that affect our daily lives then you should care about the filibuster. It governs our ability to act in areas ranging from voting rights and democracy reform to getting our infrastructure repaired.  All of those things have been blocked by the misuse of a rule that was an accident to begin with.

Matt Robison: How did we end up here?

Norm Ornstein:  In 1805, Vice President Aaron Burr suggested a tiny rule change that meant that the majority couldn’t end debate in the Senate. Eventually, Senators figured out how to take advantage of that rule.  The main use of the filibuster through most of the 20th century was by segregationists blocking action on civil rights and voting rights.

In 1975, both parties sat down and they worked out a new compromise: [a rule allowing the majority] to end debate.  They moved the standard from “two thirds of those present and voting” to “three-fifths of the Senate.”

But that put the burden on the majority to muster 60 votes to move anything. Eventually, that allowed Mitch McConnell  to really exploit the rule during the Obama years.  He saw that if you filibustered everything – little bills, big bills, nominations for courts – you could tie the majority up in knots.

Matt Robison: You’ve suggested that there could be reforms that could appeal to reluctant Democrats and avoid having Republicans blow up the Senate.  What are they?

Norm Ornstein: One is to put the burden back on the minority and not the majority. Instead of having 60 votes required to end debate have 41 required to continue debate. The minority would have to come up with 41 members. That would mean that at least the filibuster wouldn’t be used as a weapon of mass obstruction. It would end up being reserved for the most major measures. I would also make the minority have to debate the actual issue. No reading Green Eggs and Ham to waste time.  You’d have to talk about why you are blocking, say, a universal background check bill supported by 94% of Americans.

The second idea is just to return to that “present and voting” standard.  So it matters how many Senators actually show up.  If 20 of them don’t show up, you only need 48 votes to end debate. Again, make the minority do the work.

And then the third option is just to reduce the threshold to end debate outright. You could reduce it down to 55 Senators. But you could also be more creative. Former Senator Tom Harken’s idea was to step down the threshold as you debate a bill. So start with a level of 60 votes for a couple of weeks. And then lower the bar to 57, and then 54, and then 51. So ultimately the majority is going to have the ability to act, but there’s plenty of time devoted to the minority.

Matt Robison: Do Democrats need to first put forward some bills with bipartisan appeal? Give Republicans the opportunity to act in good faith?

Norm Ornstein: I’m all for that, understanding that you don’t want to delay action for long.  These voter suppression measures that Republicans are passing in many state legislatures will be signed soon. Once they’re baked in, they’re going to be harder to overcome. We have a national voting rights bill [the For the People Act]. If you don’t get that done until 2022, you’re probably too late.

We already have a political system that’s stacked in favor of the minority. [Because of the number of Senators per state], the 50 Democrats in the Senate represent 41 million more people than the 50 Republicans. So there’s minority rule in the Senate as it is. We don’t need the filibuster to protect the minority. What we need is more ability to enable a majority to act. Especially when it’s an overwhelming majority in an area where there’s a clear national need.

We share excerpts from the Great Ideas podcast every week that explain how policies work and present innovative solutions for problems. Please subscribe, and to hear Norm Ornstein’s other insights on the filibuster and voting, check out the full episode on Apple, Spotify, Google, Anchor, Breaker, Pocket, RadioPublic, or Stitcher

Matt Robison

Matt Robison is a writer and political analyst who focuses on trends in demographics, psychology, policy, and economics that are shaping American politics. He spent a decade working on Capitol Hill as a Legislative Director and Chief of Staff to three Members of Congress, and also worked as a senior advisor, campaign manager, or consultant on several Congressional races, with a focus in New Hampshire. In 2012, he ran a come-from-behind race that national political analysts called the biggest surprise win of the election. He went on to work as Policy Director in the New Hampshire state senate, successfully helping to coordinate the legislative effort to pass Medicaid expansion.  He has also done extensive private sector work on energy regulatory policy. Matt holds a Bachelor’s degree in economics from Swarthmore College and a Master’s degree in public policy from the Harvard Kennedy School of Government.  He lives with his wife and three children in Amherst, Massachusetts.