The filibuster debate has focused on whether the rule facilitates or stifles negotiation and compromise. Of course, the rule – that 60 votes are required to end debate – doesn’t do either. It’s the norms that those subject to the rule adopt that matter. 

When I was younger, it seemed, Congress adhered to a norm with these tenets:

• The majority wanted a substantial bi-partisan final vote. The American people would see a new law with such support as a victory for the democratic process and be more untied as a result. The benefits of passing a bill with a large majority thus outweighed the substantive sacrifices needed to achieve it, even if a marginally better bill – from the majority’s perspective –could have been passed with a slim partisan majority.

• The minority recognized legislation supported by a majority of the American public should pass. The filibuster gave them the power to continue the debate and thereby improve a bill. But they claimed no general right to block legislation. So, they worked to make it better – from the minority’s perspective – even though they often would have preferred no bill at all. The American people would see such a new law as a victory for the democratic process and be more untied as a result. The benefits of allowing a substantively improved bill to pass outweighed the political sacrifices required to permit cloture on a bill that the minority would prefer to block altogether.  

The current filibuster rule worked reasonably well with this norm because legislators correctly viewed it as a tool to extend debate while compromises were reached. The 60-vote cloture requirement encouraged the majority to seek compromise to get a larger majority and empowered the minority to garner real improvements in exchange for their votes. It was a way to improve, not kill, legislation.

This norm did not always hold. Civil rights legislation in the late-50s and early-60s is a notable exception. Those politicians used the filibuster improperly. But they were an exception to the norm.  

A good example of the norm working – albeit not one Democrats remember fondly – may be the 1994 election. Republicans gained control after President Clinton pushed through a tax increase without Republican votes. Republicans championed the “Contract with America,” a slate of legislation that they promised to consider. Working together with a Democratic president and ultimately Democratic legislators, almost all of this legislation passed along with other significant bills including welfare reform, habeas corpus reform, and telecommunications reform. Each embodied compromise. But they constituted solid victories for the right. Many Democrats opposed these laws but had to admit they were ultimately better than they would have been without the compromises Democratic legislators obtained.

In 1996, Clinton was re-elected easily, and Republicans held both houses of Congress. And by the end of the Clinton presidency, the United States had achieved a budget surplus. The filibuster seemed to be working as it should. 

But then, the norm crumbled. Republicans may have concluded that their willingness to compromise enabled Clinton to be re-elected. If they had instead blocked his agenda, they might have convinced the American people to reject the same.

In 2000, the Republicans won a narrow victory. Rather than compromise, they acted as if they had won overwhelmingly. The virtue in enacting legislation with a large majority disappeared. Republicans now saw a purer victory as superior to one with a larger majority. 

Obama’s election in 2008, with overwhelming majorities in both houses, held the promise for a return to the norm. Obama, after all, had declared that there were “no red states, no blue states, only United States.” And he was willing to compromise. But Republicans would hear none of it. Minority leader Mitch McConnel famously declared that his job was to make Obama a one-term president. Abandoning the old norm, Republicans simply stood in opposition, refusing to accept substantive improvements to popular legislation in exchange for joining a larger majority. Indeed, Obama’s compromises garnered virtually no Republican votes. 

For a short time, Republicans were able to have their cake and eat it too. They got the benefit of compromises accepted by Obama without joining the majority, and then they re-took Congress. This period is now viewed as one in which Democrats squandered opportunities. But Republicans remember it fondly. 

Obama’s failed negotiations on Social Security reform with House Speaker Boehner continued this trend. These two understood the old norms, but the rank and file had rejected them, preferring stalemate to compromise. Republicans began regularly filibustering even judicial nominations, which had been a rare occurrence. Democrats ultimately removed the filibuster for appointments, except for Supreme Court justices. 

Trump’s victory reinforced the new norm. Republicans used their total control to pursue only those bills that they could pass without the need for compromise and without concern about the narrowness of their majority. And they removed the filibuster for Supreme Court appointments, apparently without giving it a second thought.

Biden’s election brought out a parody quote attributed to McConnel that like all good parody contained a kernel of truth. “I don’t care whether the bill would help the American people,” the joke went, “I won’t let the Democrats obtain a victory on anything.”

Given the new norm in which an ideologically pure, narrow victory or a stalemate is preferred to broad majorities and compromise, the current filibuster rule does not serve a positive function. It does not enable the minority to extend the debate to improve legislation. It simply increases the weight of their no vote without justification.

The rule must be changed to restore appropriate norms. Some have argued persuasively that repealing the filibuster would encourage compromise. If the minority knows that a bill can pass without them, minority Senators will be more likely to compromise. But this could only work if the majority also returned to the norm of favoring broad majorities. Given the current willingness to accept narrow victories, eliminating the filibuster might not encourage many compromises. 

It would, of course, enable the Democrats to advance legislation. And just as the Republicans eliminated the filibuster to secure two Supreme Court seats, Democrats may need to eliminate it to ensure specific paramount goals, such as voting rights.

More broadly, though, we need some way to encourage legislators to compromise. A fruitful avenue could be to focus on requiring the minority to take positive action in order to keep debate open. After all, the filibuster should be a means to continue the debate, not a back door means to kill the bill. If one wants to filibuster, they should be required to justify continued debate.

A positive first step would be to shift the burden. Now, the majority needs 60 votes to close the debate. If instead, the minority needed 40 votes to continue it, compromise could be encouraged. Maintaining 40 votes at the ready is no easy task, and the cost of doing it would create an incentive to compromise.

Another approach would be to compel the minority to “put up or shut up.” The idea here would be to recognize that it makes sense to continue debate only if the minority is substantively debating the bill. If all they have to say is “we vote no,” they can do that on a final vote after the debate closes. But forcing a Senator to prattle on without saying anything substantive is not the answer. Instead, to maintain a filibuster, a member of the minority party should be required to articular a germane written amendment that, if adopted, would enable them to support the bill. 

Administering such a rule would be challenging and perhaps impossible. Perhaps, the parliamentarian could review amendments for germaneness as they do for budget reconciliation bills. This process could effectively compel an agreement on some aspects of a bill, forcing the minority to focus on those sections that they truly dispute. Each such amendment could be granted a set period of debate time. If the minority then wants to continue the debate after the time ended, it would need to put forward a new germane amendment.

Steven Semeraro is the Professor of Law and Director of the Intellectual Property Fellowship Program at Thomas Jefferson School of Law, San Diego, California. 

Suggested Citation: Steven Semeraro, Filibuster Rules and Filibuster Norms, JURIST – Academic Commentary, April 17, 2020, https://www.jurist.org/commentary/2021/04/steven-semeraro-filibuster-rules-norms/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.