Ending the Legislative Filibuster Is a Terrible Idea

Lawmaking ain't supposed to be easy

Donald Trump is trying to get Republicans in the Senate to do away with the legislative filibuster. This is not a new position for Trump, who made similar overtures to Republicans in 2017 and 2018 to eliminate the legislative filibuster. Although some Republicans, most notably Sen. Ted Cruz (R-TX), agreed with Trump, most seemed to disagree. In April 2017, nearly 30 Senate Republicans signed a bipartisan letter in support of the legislative filibuster.

Thankfully, Senate Majority Leader John Thune (R-SD) isn’t inclined to go along with Trump’s wishes. On Monday, Thune flatly said, “The votes aren’t there.” He’s previously dismissed the idea, so it’s hard to see the 60-vote threshold for cloture going away under Republican control. Republicans know the can of worms they’d be opening if they eliminated the legislative filibuster and that they’d lose the moral high ground over Democrats on the issue.

So, what are we talking about here? The legislative filibuster is the three-fifths threshold to limit debate on a procedural motion pending before the Senate. This comes from paragraph 2 of Rule XXII of the Standing Rules of the Senate. We know this as a “cloture motion” or “cloture.” Typically, there are at least two cloture motions for underlying legislation. The first is the cloture motion on the motion to proceed. The second is to limit debate on the underlying bill. There can be additional cloture motions. Once cloture is agreed to, the Senate goes through 30 hours of post-cloture time, split evenly between the two sides.

The legislative filibuster is different from the cloture motion for nominees. The partisan back-and-forth over the filibuster for nominees dates back at least two decades. In 2005, Senate Majority Leader Bill Frist (R-TN) considered using the “nuclear option” to overcome Democratic filibusters of circuit court nominees, but the bipartisan “Gang of 14” defused the confrontation by agreeing to allow votes except in “extraordinary circumstances.”

Without a similar compromise in 2013, Majority Leader Harry Reid (D-NV) invoked the nuclear option, raising a point of order to reduce the cloture threshold for most nominations to a simple majority, except for those to the Supreme Court. When the presiding officer rejected the move, Reid appealed, and a majority overturned the ruling, with three Democrats siding with Republicans. In April 2017, Majority Leader Mitch McConnell (R-KY) extended the simple-majority cloture standard to Supreme Court nominees—lifetime appointments that shape constitutional interpretation now require no bipartisan support—over Democratic objections. However, in January 2022, then-Majority Leader Chuck Schumer unsuccessfully tried to change the cloture threshold for the Freedom to Vote: John R. Lewis Act.

Trump’s argument is, as he posted on Thursday, October 30. Trump’s comments below are in italics. I’ve added commentary under each point.

• “Get rid of the Filibuster, and get rid of it, NOW! Just a short while ago, the Democrats, while in power, fought for three years to do this, but were unable to pull it off because of Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.”
  
  This is accurate-ish. As noted, the change that Schumer proposed was a limited exception to the threshold for the cloture motion. Manchin and Sinema were the only to Democrats to vote against the change, defeating it on the floor. This maintained the 60-vote threshold for cloture for legislation.
  

• “Never have the Democrats fought so hard to do something because they knew the tremendous strength that terminating the Filibuster would give them. They want to substantially expand (PACK!) the United States Supreme Court, make Washington, D.C. and Puerto Rico States (Thereby automatically picking up 4 Senate seats, many House seats, and at least 8 Electoral Votes!), and many other highly destructive things.”
  
  Again, what Schumer proposed in January 2022 was a limited exception to the cloture threshold. Although one can speculate that Democrats would’ve gone further to expand the exceptions to the cloture motion for legislation to other issues or scrapped it entirely, that simply was not what was on the table. I say this as someone who supports the 60-vote threshold for cloture.
  

• “Well, now WE are in power, and if we did what we should be doing, it would IMMEDIATELY end this ridiculous, Country destroying ‘SHUT DOWN.’ If the Democrats ever came back into power, which would be made easier for them if the Republicans are not using the Great Strength and Policies made available to us by ending the Filibuster, the Democrats will exercise their rights, and it will be done in the first day they take office, regardless of whether or not we do it.”
  
  I mean, yes, eliminating the filibuster for legislation would allow Republicans to fund the government without Democratic votes. Nixing the legislative filibuster may have some short-term political benefit for Republicans. However, what’s good for the goose is good for the gander. Democrats would almost certainly use the end of the legislative filibuster to repeal much of what Trump got through and enact their own agenda. I’d say the same if it were Democrats in control of the Legislative and Executive branches of the federal government. This would lead to a partisan back-and-forth and create economic uncertainty.
  
  Now, the second part of this—the “Democrats are going to do it, so we should do it first” argument—is one I’ve heard for years. Yes, Democrats have tried to create a limited exception to the filibuster. They weren’t successful. That doesn’t mean they won’t try again when they eventually regain control of the Senate.
  

• “In addition to all of the other things we would get, such as the best Judges, the best U.S. Attorneys, the best of everything, this was a concept from years ago of then President Barack Hussein Obama and former Majority Leader Harry Reid in order to take advantage of the Republicans.”
  
  Although Obama has indeed been critical of the filibuster, the criticism that I’m aware of has happened after his presidency ended. Obama did support the changes that Reid made in 2013 to the filibuster for nominees, which, as noted, Republicans have subsequently extended to Supreme Court nominees.

• “Now I want to do it in order to take advantage of the Democrats….”
  
  This is the real reason Trump wants to change the rules. It’s about power over his political opposition, more than anything else.

This hasn’t been the only musing of Trump about the filibuster in recent days. In a subsequent all-caps screed, Trump unironically called Democrats “STONE COLD ‘CRAZY.’” Because posts like this on social media scream “normal,” apparently. While it’s good to see Republicans stand up to Trump on something rather important, the destruction of minority rights in the Senate has come mainly under Republican control.

The modern erosion of minority rights in the Senate did not occur in a single vote, but 2013, when Reid deployed the “nuclear option,” marked a significant inflection point. In practice, it rebalanced institutional power away from the minority’s ability to negotiate over personnel and toward whichever party controls 51 seats. The Senate’s original design—forcing consensus on positions that execute and interpret federal law—began to erode.

Republicans expanded this precedent in 2017 to include nominees to the Supreme Court. Combined with later reductions in post-cloture debate time under Republicans and the recent change to allow for the en bloc consideration of nominations, the minority’s procedural tools have been reduced to messaging and delay at the margins. Those latter changes are just as problematic as the original changes to the cloture threshold for nominees.

These changes have produced predictable incentives. Presidents no longer need nominees who can appeal across party lines. The majority has fewer reasons to consult the minority on floor scheduling. The minority, in turn, increasingly uses legislative filibusters and holds to gain leverage wherever it still can. The chamber becomes more polarized, not because senators disagree more, but because the rules no longer encourage negotiation when it matters.

What remains of the Senate’s supermajority tradition now rests almost entirely on the legislative filibuster. Each time either party cites the previous escalation as justification for the next, the norm of minority participation weakens. The Senate still advertises itself as the “world’s greatest deliberative body,” but the incentives are shifting: narrower coalitions, faster confirmations, and policymaking through judicial interpretation rather than legislative compromise.

Lawmaking wasn’t intended to be easy. It was meant to rely on coalitions, consensus, and compromise. No side is supposed to get everything they want. The reason I mention those three “Cs” is that they’re necessary to get public support. If it’s not bipartisan, it’s not credible. Reaching an agreement on an issue in an echo chamber does not constitute consensus. It does, however, breed resentment and can be a political headache.

It’s a terrible idea to eliminate the 60-vote threshold for cloture on legislation. Unfortunately, we live in a political environment that thrives on bad ideas and short-term political gain, which is why I’m afraid the filibuster is on its last legs.