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Scourge of US presidents, what is the filibuster?

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The US Capitol in Washington is the scene of fierce wrangling over the 'filibuster' -- a political maneuver that can delay or block votes./AFP
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Jan 12, 2022 - 10:16 AM

WASHINGTON — One year into his presidency, Joe Biden has seen his legislative agenda effectively stalled in Congress even though his own party narrowly controls both chambers.

The main culprit: a longstanding Senate maneuver known as the “filibuster” — which Biden said Tuesday he was determined to override on the key issue of voting rights.

60: the magic number 

The popular perception of a filibuster — shaped by movies and TV dramas — involves a lone senator speaking for hours and refusing to cede the floor in an attempt to delay or block a vote.

The more prosaic reality is a rule which today requires 60 of the Senate’s 100 members to move to a vote on most topics — even if the legislation itself requires only a simple majority to pass.

If the minority party holds at least 41 seats, it can refuse to allow a vote — in what is known as a filibuster.

Neither party has had a 60-seat supermajority since 2010, when Democrats passed the major health care reform known as “Obamacare.”

In theory, the 60-vote rule is supposed to force the parties to compromise — which they have ultimately done to keep the government and military funded over the past decade — but critics argue that it severely stymies Senate efficiency and unfairly blocks necessary reforms.

Historical ‘mistake’ 

The US Constitution, which largely allows each chamber of Congress to make its own rules, makes no mention of the filibuster.

Sarah Binder, a professor at George Washington University, explained in 2010 Senate testimony that it largely came about “by mistake” in 1806, when senators deleted an unused rule that could have served to cut short debate and move to a vote.

Filibusters, she explained, were rarely used in America’s early years, but became more frequent as the Senate grew larger and more polarized along party lines.

There was initially no way to break a filibuster — until 1917 when senators set a rule allowing a two-thirds majority to force a vote, framing the World War I-era change as a “matter of national security.”

In 1975 that threshold was lowered to 60, or “three-fifths of all senators,” according to the Senate Historical Office.

The ‘nuclear option’ 

Major exceptions to the filibuster already exist, most notably “budget reconciliation,” which Republicans used under former president Trump to pass their tax reform package, and Democrats used under Biden to pass a Covid stimulus package.

To change Senate rules — like the one requiring 60 votes to break a filibuster — normally requires an even higher, two-thirds majority.

However, under a controversial special procedure, rules can be overridden with a simple 51-vote majority.

That so-called “nuclear option” has only ever been invoked twice to circumvent the filibuster: in 2013, Democrats used it to limit filibusters of most presidential nominees, except for the Supreme Court.

And Republicans used it again in 2017, to block filibusters of Supreme Court nominees, later confirming three Trump-nominated justices with fewer than 60 votes.

Declaration of war 

During the 2020 election and early in his presidency, Biden opposed changes to the filibuster rules, arguing that he would be able to find compromise.

But on Tuesday he changed tack: backing the use of the “nuclear option” so that Democrats can override Republican opposition to pass two voting rights bills he says are crucial to saving US democracy.

The problem for Biden is that this will be seen as a declaration of war by Republicans, who warn it will open the floodgates to lifting the filibuster on all sorts of issues and end any semblance of bipartisanship in the Senate.

Perhaps worse for Biden, the maneuver needs unanimous Democratic support to happen — and that’s far from assured.

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