When the Democrats won both of Georgia’s Senate contests in January, they pulled off the unlikely feat of gaining control of the Senate. While it’s split 50-50 between Democrats and Republicans, the vice-president is Kamala Harris and thus holds the tie-breaking vote. That gives the Democrats a razor-thin majority, but a majority nonetheless.
Without 60 seats, however, Biden and the Democrats don’t have the strength to overcome a filibuster should any Republican senator, even one, decide to block a bill he or she doesn’t like. Once rare, the filibuster has been used with increasing frequency since the early 2000s, making it more and more difficult for any administration to pass legislation. It was one of the reasons that Obama gave up on passing the 2009 Clean Energy and Security Act, which aimed to curb greenhouse gas emissions. Such were the anticipated obstacles from the Senate, even though the bill had been passed the House by a 219-212.
This situation was denounced by then-New Mexico senator Tom Udall during a farewell speech he gave on December 8, 2020. He called the Senate a “graveyard for progress” and stated that “the reality of the filibuster is paralysis – a deep paralysis”. Some Democrats are dreading the use of this tool for obstruction over the next four years, and calling on Biden to abolish it, such as former Nevada Senator Harry Reid, who told the Associated Press in October 2020 that “the time’s going to come when he’s going to have to move in and get rid of the filibuster”.
Will legislative obstruction be as much of a problem for Biden and his policies as it was for Obama? If so, what options does he have?
A short history of the filibuster
The filibuster in its current form is an outgrowth of a 1917 Senate reform. It is a distinctive feature of the Senate and has no equivalent in any other branch of the US government. Once invoked, it allows a senator to speak for as long as they want, without being interrupted.
Filibusters were intended to safeguard the right of minority opinions to be heard. It also allows all senators feel like they are important, because each and every one can in effect prevent a bill from being passed, even when it’s supported by the 99 other senators. After a filibuster, the bill can technically be put back on the table, but the Senate often prefers to move on to the next bill. All the more so that senators typically respect each other’s prerogatives. This means that filibusters do in fact work as a veto on any proposed bill.
The president’s options when faced with legislative obstruction
Due to the separation of powers in the United States, the president has no authority over the internal regulations of Congress, and that includes the filibuster. While the Democrats control the Senate and Biden could ask Chuck Schumer, the majority leader, to abolish the filibuster, Biden is an institutionalist. Having spent 20 years in the Senate, he is attached to its traditions and appears opposed to any change. That is why he would rather promote his policies in order to persuade Congress to adopt them and avoid wasting precious political capital on a procedural maneuver that’s little known to overwhelming majority of Americans.
Those in the Biden camp who would like to see the filibuster gone believe that because of the make-up of the 117th Congress, there is every likelihood that legislative obstruction will be regularly used. Given that the Republicans have one fewer votes are likely to employ the filibuster as their ace in the hole.
Over the past 20 years, the number of bills that were passed into law has been steadily decreasing. At the same time, partisan polarization has become more pronounced. Passing a piece of legislation is now almost the exception to the rule. It is extremely difficult for the two parties to work together on joint projects, and most Republicans are categorically opposed to anything that is submitted by Democrats, which will certainly make it harder for Biden to successfully govern.
Trying to overcome the filibuster
The storming of the Capitol by Trump’s supporters on January 6, 2020, was an immense shock, however. Republicans are deeply split over the attack, with some members loudly supporting Trump, many keeping silent, and a limited number denouncing his actions. A key defection is Mitch McConnell, the Senate minority leader, who has distanced himself from the former president. So he might show some goodwill toward President Biden.
As a centrist Democrat, Biden will try to overcome the partisan rift. Barack Obama tried the same approach and was systematically blocked, but this time around some Republicans who oppose Trump may accept Biden’s outstretched hand. Biden is well aware that it will be impossible for him to achieve a 60-vote supermajority with his own party alone, and that requires bipartisanship.
If only a limited number of Republicans cooperate with the Democratic majority, Democrats could make use of procedural methods to counter filibuster attempts, as they did under Obama. First, they could use the “reconciliation” technique that was used to pass the Health Care and Education Reconciliation Act of 2010, which amended the earlier Affordable Care Act. Second, there’s the “nuclear option”: the Senate majority leader has the power to block the use of filibuster for certain types of legislation.
In 2013, a similar measure was used to abolish the filibuster for institutional nominations, except for the Supreme Court. In 2017, the Republicans then extended this limited version of the “nuclear option” to end the filibuster against Neil Gorsuch’s nomination to the Supreme Court, knowing full well that Democrats would have blocked it otherwise.
Whether or not President Biden can pass his policies with only 51-50 control of the Senate, it should be noted that the filibuster has led to an almost complete paralysis of the legislative branch. The current Congress could be one of the least productive in history. Moreover, polls indicate that only 25% of Americans say they’re satisfied with the work of Congress, and even this constitutes a substantial improvement over earlier polls.
The Fact check US section received support from Craig Newmark Philanthropies, an American foundation fighting against disinformation.
Translated from the French by Rosie Marsland for Fast ForWord and Leighton Kille.