EDITOR’S NOTE: A version of this story was first published in 2021, when Democrats were trying to end the filibuster.
It was completely predictable that President Donald Trump would call on Senate Republicans to end the custom of the filibuster, which has bedeviled majority parties for years.
How are Democrats able to shut the government over their demands to re-up expiring enhanced Obamacare insurance subsidies? The filibuster.
Why were Republicans able to block Democrats’ efforts to create a national voting standard when Joe Biden was president? The filibuster.
In fact, most major legislation that has passed in recent years — from the Affordable Care Act to Trump’s tax credits and Biden’s Inflation Reduction Act — has been crammed through using budget reconciliation rules that allow lawmakers to sidestep the filibuster. But that’s a complicated process and can’t be used for things like spending bills to keep the government open.
Democrats tried and failed to change Senate rules when they had the majority and Biden was president. Now, Trump wants Republicans to change Senate rules while they have the majority and he’s the president.
The upside of ending the filibuster — a possibility known as the “nuclear option” of changing Senate rules — is that the in-power party could get more done. The downside is it would amplify the yo-yo nature of today’s Washington, with each successive Congress undoing whatever the previous one had accomplished, assuming majority rule changed hands.
The Senate was designed to work on supermajority votes in order to generate compromise. Instead the system has created paralysis. This is a world where three-fifths is the only meaningful majority, “debate” is code for delay and party loyalty has overtaken the greater good.
To understand what’s going on, you’ll have to learn the special, pre-modern language of “filibuster” and “cloture,” baffling math and maddening rules like “Rule XXII” that govern Senate procedure and confound common sense.
Here’s what you need to know:
What is the filibuster?
According to the Senate website — which has its own glossary — a filibuster is this: “Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”
These days, it’s shorthand for anytime senators demand a supermajority to cut off debate and move to an actual vote on just about anything.
What would ending the filibuster do?
When people talk about ending the filibuster, what they really mean is reinterpreting Senate rules so that legislation could pass by a simple majority instead of being held up by a minority.
Does Trump have enough support to end the filibuster?
Probably not. Republicans made a point of opposing Democratic efforts to end the filibuster for legislation four years ago. Senate Majority Leader John Thune pledged when he took over the caucus that he would not end the filibuster.
Has the filibuster ever changed?
Yes, repeatedly. The Senate has been chipping away at the filibuster for decades. The filibuster has also been ended for presidential and judicial nominations. But in recent years, use of the filibuster has grown in tandem with another unique Senate concept, cloture, which is required to break a filibuster.
What is cloture?
It’s a funny spelling for the idea of closure, or limiting debate on something. If all senators don’t agree to move to a vote on something — a bill, a nomination, almost anything — supporters must “invoke cloture.”
Here’s the Senate glossary definition: “A procedure used in the Senate to place a time limit on consideration of a bill or other matter. Used to overcome or deter a filibuster. See Senate Rule XXII.”
Why are the filibuster and cloture built into Senate rules?
Unlimited debate by filibuster appears to be something of an accident, according to some experts. Brookings fellow Molly Reynolds wrote that a provision allowing for a simple majority to force votes like the one utilized in the House of Representatives was removed on the advice of then-Vice President Aaron Burr to simplify the rules, not to create a supermajority test for all legislation.
Filibusters came into common use around the Civil War, causing headaches and slowing things down.
Cloture was adopted around World War I as a check on filibusters, when a few senators held up efforts by President Woodrow Wilson during the war in Europe.
It’s been 60 votes or three-fifths ever since?
No. Originally it took a much-harder-to-achieve two-thirds of senators — 67 in today’s Senate — to invoke cloture and limit debate. That’s why it took so long for senators to pass civil rights legislation. They further revised the cloture rule in the late 1970s and mid-1980s. Seriously. Ending the filibuster is 100 years in the making.
What’s the filibuster been used for?
The most famous filibuster is the most distasteful: Southern Democrats held up civil rights legislation until 1964, when support was literally overwhelming.
Both sides have engaged in filibusters. Why was President George W. Bush unable to enact an immigration overhaul? Filibuster. Why was President Barack Obama unable to enact climate change legislation? Filibuster.
How often has cloture been used to get around filibusters?
It used to be quite rare. There were fewer than 10 cloture motions filed in any year between the adoption of the practice in 1917 and 1969. There were fewer than 100 filed in any year between 1970 and 2006.
But now cloture is required for almost everything. There were 266 cloture filings in the Congress of 2023 and 2024. That led to 241 cloture votes and cloture being invoked 227 times. Many of those are for judicial nominees.
How would the process be changed?
There are two ways:
- Change Senate rules, and particularly Rule XXII. But this requires two-thirds of senators — again, 67 in today’s Senate. That’s just plain not going to happen.
- Change Senate precedent. This is a sly way around the filibuster and cloture. Basically, a senator raises an objection to a cloture rule, the presiding officer rules it out of order, and then a simple majority of senators votes to overturn his or her ruling.
This second way of ending filibusters is known as the “nuclear option” because it blows up the Senate system, using a simple majority to end the process of requiring a supermajority.
Have senators ever gone nuclear before?
Yes. Democrats did it to make it easier to confirm Obama’s nominees to government service. Republicans did it to confirm Trump’s Supreme Court nominees. Filibuster boosters should wish a pox on both their houses. Democrats went nuclear first, but, objectively, it came after years of GOP obstruction of everything Obama tried to do.
Did changing precedent solve the problem?
Yes and no. It solved the problem of needing 60 votes to confirm nominees. It also led to even more cloture filings, creating a new problem in the Senate calendar.
How much time does the cloture process take?
The cloture process is meant to limit debate, but it takes days to accomplish. Under Senate rules, the signatures of 16 senators are required to file cloture, then there is an intervening day and 30 hours of debate before senators can vote on cloture. It can theoretically take 15 days to get to a vote if all cloture time is exhausted, according to the Congressional Research Service. If Democrats do reinterpret the cloture rules, it could mean even more cloture votes.
So what’s going to happen?
Senators know how to end the filibuster and partisan obstruction is getting worse, not better, so it’s just a matter of time before 50 senators agree to end this practice. Evidence: They’ve ended it for nominations. It seems unlikely that Republicans who have long supported the filibuster would turn simply because of a Trump social media post. But we shall see.