Last week, Senate Republicans blocked a bill to set up a bipartisan commission to investigate the Jan. 6 assault on the U.S. Capitol. Many press reports described this as the “first” filibuster of the current session of Congress. This is incorrect. In fact, the entire Democratic agenda in Congress has been paralyzed by filibusters for months. And unless the Senate Republicans change their strategy or the Democrats change the rules of the Senate, the Democrats will fail to achieve the ambitious policies that they promised in the 2020 elections, and that a majority of Americans voted for.
In my book, “Filibustering,” I define a filibuster as “legislative behavior (or threat of such behavior) intended to delay a collective decision for strategic gain.” By this definition, a bill can be filibustered without coming up for a vote if senators expect it will face obstruction on the Senate floor. While reporters often measure filibusters by looking at bills blocked on the Senate floor, my approach helps us identify filibusters that succeed by keeping bills off the floor entirely, or by forcing modifications in a bill to ensure the support of a large majority of the Senate.
In fact, threats of filibusters by Senate Republicans are already delaying several high-profile bills.
Since January, House Democrats have demonstrated how efficient a chamber without filibustering — real or threatened — can be. In addition to the American Rescue Plan passed in March, the House has approved legislation to reform federal election laws, expand firearm background checks, reduce racial bias in policing, provide a path to citizenship for undocumented immigrants who came to the country as minors, raise the minimum wage, ensure equal pay for women and nondiscrimination for LGBTQ people, and admit Washington, D.C., as a state.
But all of this legislation faces expected filibusters in the Senate, which is why Senate Majority Leader Chuck Schumer, D-N.Y., has not brought the proposed legislation to the Senate floor. That is not to say that each of these bills enjoys the support of a majority of the Senate, but it means that under Senate Rule 22, any Republican can threaten to debate these bills indefinitely, requiring a three-fifths majority for a “cloture” vote to impose a time limit on the floor time for a bill.
And because everyone knows these bills will be delayed, Senate Democrats have been slow to start a process that will almost certainly end in failure.
The threat of a filibuster also affects current negotiations over infrastructure spending. Both parties have expressed support for investing in infrastructure. And President Joe Biden would like to negotiate a bipartisan agreement. But under Rule 22, this essentially means that at least 10 Republican senators must be willing to vote for the negotiated bill, so the group of Senate Republicans are able to bargain as equals with Biden even though the Democrats control the White House and have a majority of the seats in the U.S. House and Senate.
In short, the default assumption in the modern Senate is that every bill that can be filibustered will be by at least one senator. This requires negotiations and probably a cloture vote to move them forward. Some bills — including budgetary legislation — are exempt from filibusters written into federal law, but this offers little protection for the rest of the Democratic agenda. Without a change, the Capitol riot standoff will increasingly feel like business as usual. And behind closed doors silent filibustering, in the expansive sense of the term, ensures Senate obstruction is here to stay.