The U.S. Capitol (photo by Drew Angerer/Getty Images).
Republicans are currently on track to win control of the presidency, the U.S. House of the Representatives, and the U.S. Senate — which is sometimes referred to as a trifecta.
This does not mean that Republicans will have an easy time keeping Donald Trump’s many campaign promises.
Under the rules of the Senate, if just one lawmaker doesn’t want a bill to progress, they can attempt to filibuster it by giving a principled speech or even just reading “Green Eggs and Ham”. In order to stop such a filibuster, a supermajority of three-fifths of the senators, or 60 of the 100, is required, at which point the bill can then be voted on.
Given that Republicans are only projected to control 53 out of the 100 senate seats, this means that Democrats will be able to block many proposed pieces of legislation. Faced with such obstruction, Republicans might consider trying to undermine the filibuster by changing the Senate’s rules, which only requires the support of a majority of senators.
However, even if the filibuster were eliminated entirely, it would still be very arduous to ram anything through the U.S. government thanks to the Constitution’s robust separation of powers.
At the federal level, bills need to pass both chambers of Congress with majority support, which can be a huge hurdle. Founder James Madison argued that having two chambers was beneficial, as it prevents the passage of “improper acts of legislation.” However, there are plenty of democracies around the world that only have one chamber to their legislature — for example, Denmark, Finland, Greece, Iceland, Luxembourg, and the U.S. state of Nebraska.
Even if a bill has the support of the majority in both the House and the Senate, it still faces a potential presidential veto, which can only be overridden by a two-thirds supermajority in both congressional chambers. Yet, at the state level, many legislatures can override vetoes by their governor with a simple majority, which is the same threshold needed to override presidential vetoes in Estonia, France, and Italy.
In some democracies, such as Austria and Germany, the president doesn’t even have the power to veto legislation.
If a bill gets passed by Congress and is signed by the president, the U.S. Supreme Court can still declare it unconstitutional. Not all democracies give their highest court this power: The Constitution of the Netherlands, for instance, explicitly prohibits this. In Switzerland, the highest court can strike down laws passed by the cantons, which are similar to U.S. states, but it cannot overturn federal legislation.
Some have argued that the filibuster plays a crucial role in our constitutional order. However, it’s important to point out that the founders did not include the filibuster in the Constitution.
The filibuster only became part of the Senate’s rules by mistake when then-Vice President Aaron Burr recommended that the Senate clean up its rulebook by removing redundant language. One of the rules that was axed in 1806 at Burr’s behest empowered a simple majority to cut off debate. Eventually, this mistake was realized and exploited when the Senate endured its first filibuster in 1837.
Since that time, there have been many efforts to restrict the use of the filibuster. A frustrated Woodrow Wilson — the only U.S. president to have earned a Ph.D. in political science —once noted that the “Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.” In 1917, he successfully curbed the use of the filibuster by pressuring the Senate to adopt a rule that allowed for a two-thirds supermajority to end debate.
In 1974, the Senate further limited the use of the filibuster by agreeing that when using a process called “reconciliation” to pass a budget-related bill, debate in the Senate is limited to 20 hours. This means that reconciliation bills cannot be filibustered, as debate cannot continue in perpetuity.
After the maximum allotted time for debate has elapsed, reconciliation bills only require the approval of a simple majority. Most recently, this process was used to pass the 2017 Tax Cuts and Jobs Act, the 2021 American Rescue Plan, and the 2022 Inflation Reduction Act.
In 1975, senators reduced the two-thirds supermajority required to end debate to the present three-fifths, thereby creating the current 60-vote threshold.
In 2013, the filibuster was again weakened when Democrats, then in the majority, eliminated its use on all presidential nominees except those to the Supreme Court in response to the repeated Republican obstruction of Barack Obama’s nominees.
In 2017, Republicans, having retaken the Senate, went one step farther by eliminating the use of the filibuster on Supreme Court nominees. All three of Trump’s nominees to the country’s highest court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were confirmed with fewer than 60 votes.
With a Republican trifecta, Trump may push for additional filibuster changes, so that only 51 votes are needed to end debate and vote on legislation. Should that scenario come to pass, it does not mean that U.S. democracy is at risk. Rather, limiting the use of the filibuster would simply bring the federal government in line with many democratic countries around the world and many U.S. states.
In the Missouri Senate, for instance, the support of a majority of the senators elected is all that’s necessarily to push legislation along.
Furthermore, filibusters in the Missouri Senate have a “talking” requirement — which hasn’t been the case at the federal level since the 1970s. With that said, the norm in Missouri is for the party in the majority to negotiate in good faith with the minority party to try to reach a compromise that will negate the need for a filibuster in the first place. This pushes a lot of dealmaking behind the scenes.
As such, turning to parliamentary maneuvers to end filibusters in Missouri are relatively rare.
Filibuster reform is enticing because it makes it a bit easier for the ruling party to get what they want. This means that Republicans would have a less challenging time pushing through contentious legislation — but the same goes for Democrats the next chance they get.