Here's an excerpt from Heather Cox Richardson's newsletter, posted on January 22, 2021. It's a concise description of the filibuster, with a short history and the situation facing the Senate today, when McConnell wants the Democrats to promise not to kill the filibuster. They won't, because they don't have the votes (West Virginia Senator Joe Manchin is opposed), but they want to continue to threaten to do it to prevent Republicans from abusing the process: If the Democrats declare they won't kill it, the Republicans can filibuster to their hearts' content:
The other story from today with a long history behind it is that the Senate is currently unable to organize itself because Minority Leader Mitch McConnell (R-KY) is insisting that the Democrats commit to leaving the filibuster intact. The filibuster is peculiar to the Senate, and is a procedure designed to draw out the session to prevent a vote on a measure. It is an old system, but it is not exactly hallowed: it was a bit of a mistake.
The Constitution provides for the Senate to pass most measures by a simple majority. It also permits each house of Congress to write its own rules. According to historian Brian Bixby, the House discovered early on that it needed a procedure to stop debate and get on with a vote. The Senate, a much smaller body, did not.
In the 1830s, senators in the minority discovered they could prevent votes on issues they disliked simply by talking the issue to death. In 1917, when both President Woodrow Wilson and the American people turned against the filibuster after senators used it to stop Wilson from preparing for war, the Senate reluctantly adopted a procedure to end a filibuster using a process called “cloture,” but that process is slow and it takes a majority of three-fifths of all members. Today, that is 60 votes.
From 1917 to 1964, senators filibustered primarily to stop civil rights legislation. The process was grueling: a senator had to talk for hours, as South Carolina Senator Strom Thurmond did in 1957, when he spoke for 24 hours straight to stand against a civil rights act. But the need to speed up Senate business meant that in the 1960s and 1970s, senators settled on procedural filibusters that enabled an individual senator to kill a measure simply by declaring opposition, rather than through the old-fashioned system of all-night speeches. The Senate also declared some measures, such as budget resolutions, immune to filibusters. Effectively, this means that it takes 60 votes, rather than a simple majority, to get anything--other than absolutely imperative financial measures-- done.
In 2013, frustrated by the Republicans’ filibustering of President Obama’s judicial nominees and picks for a number of officials in the Executive Branch, then-Senate Majority Leader Harry Reid (D-NV) prohibited filibusters on certain Executive Branch and judicial nominees. In 2017, when Democrats tried to filibuster the nomination of Supreme Court Judge Neil Gorsuch, then-Majority Leader Mitch McConnell killed the filibuster for Supreme Court nominees, as well.
The filibuster remains in place for legislation.
The Democrats currently have no plans to try to kill the filibuster altogether—they do not have the votes, as Joe Manchin (D-WV) has openly opposed the idea and others are leery—but they want to keep the threat of killing it to prevent McConnell and the Republicans from abusing it and stopping all Democratic legislation.
This impasse means that senators are not organizing the Senate. New senators have not been added to existing committees, which leaves Republicans in the majority in key committees. This is slowing down Biden’s ability to get his nominees confirmed.
What’s at stake here is actually quite an interesting question. While the new Senate is split evenly—50 Democrats, 50 Republicans—the 50 Democrats in the Senate represent over 41.5 million more people than the 50 Republicans represent. The filibuster means that no legislation can pass Congress without the support of 10 Republicans. Essentially, then, the fight over the filibuster is a fight not just about the ability of the Democrats to get laws passed, but about whether McConnell and the Republicans, who represent a minority of the American people, can kill legislation endorsed by lawmakers who represent quite a large majority.
We are in an uncomfortable period in our history in which the mechanics of our democracy are functionally anti-democratic. The fight over the filibuster might seem dull, but it’s actually a pretty significant struggle as our lawmakers try to make the rules of our system fit our changing nation.
Charlie Pierce, in an article at Esquire, gives the following quote from Politico:
Many Democrats argue that having the threat of targeting the filibuster will be key to forcing compromise with reluctant Republicans. They also believe it would show weakness to accede to McConnell’s demand as he’s relegated to minority leader. “Chuck Schumer is the majority leader and he should be treated like majority leader. We can get shit done around here and we ought to be focused on getting stuff done,” said Sen. Jon Tester (D-Mont.). “If we don’t, the inmates are going to be running this ship.”
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