Arguments for and against the filibuster, 2021

The Democrats gained control of the U.S. Senate with 50 votes—and Vice President Kamala Harris (D) as a tie-breaking vote—following the two victories in the Senate runoff elections in Georgia in January 2021. As a result, the debate over whether the filibuster should be eliminated was reignited.

The filibuster describes any attempt to block or delay Senate action on a bill or other matter by speaking at length on a proposal, introducing multiple procedural motions, or engaging in other obstructive actions. In short, a filibuster is a technical tool to extend debate, allowing one or more senators to delay or entirely prevent a vote on a given proposal. Without the filibuster, it is possible for a majority party to pass legislation without bipartisan support. Click here for more information about the history of the filibuster.

More than 60 progressive groups, including Indivisible and MoveOn Civic Action, called for the filibuster to be abolished after the Georgia elections: "The results of this election have unlocked the door to change, but another clear obstacle remains: the rules of the United States Senate that allow a partisan minority to block legislation and will prevent the Senate from governing and delivering on the promises they made to voters if they are left in place."

A spokesperson for Senate Minority Leader Mitch McConnell (R-Ky.) said that McConnell had the "long-held view that the crucial, longstanding and bipartisan Senate rules concerning the legislative filibuster remain intact, specifically during the power share for the next two years."

This page lists the key arguments for and against keeping the filibuster. It also provides a sampling of positions given by U.S. senators on this subject beginning at the end of 2020.

• Arguments in favor of keeping the filibuster
• Arguments in favor of ending the filibuster
• Alternatives to maintaining the current filibuster
• Senators in support of the filibuster
• Senators against the filibuster
• Senators undecided on the filibuster

Arguments in favor of keeping the filibuster

The filibuster promotes compromise on legislation

“	Far from being simply a weapon of obstruction, the filibuster actually forces compromise. The framers designed the Senate to be a consensus-driven body. If a majority party knows they need to garner 60 votes to end debate on a bill, the necessity of working across the aisle, negotiating, and finding areas of agreement becomes imperative, rather than optional. Without the filibuster as a tool of negotiation, the Senate becomes little more than a smaller version of the House of Representatives where legislation reflects the priorities of the majority, with little regard to concerns of the minority.	”
—Rachel Bovard, The Heritage Foundation (April 11, 2017)

The filibuster provides constraints on majority power

“	Democrats should take stock of everything they delayed and derailed under Trump because of the filibuster — and then imagine all that and more being enacted by simple majority vote when Republicans regain control of Congress and the presidency, which they eventually will. The filibuster allowed Democrats to constrain Republicans from enacting what the Democrats consider a radical agenda under a populist right-wing president. If they eliminate that tool to enact their own radical agenda, they would rue that decision when they return to the minority — and hasten that return by provoking a populist backlash that could sweep them out of power.	”
—Marc A. Thiessen, The Washington Post (January 26, 2021)

The filibuster supports public confidence in American governance

“	Historically, the Senate was designed to work its will to reach a consensus rather than to react to the passions of the day and simply implement the will of the majority. And that has forced lawmakers from opposing political parties to work together and seek compromise. We can already see the cost of eliminating the need for bipartisan support for nominations: it has eroded public confidence. Approving cabinet officials, judges, and Justices on party-line votes has been followed by lawmakers and the public questioning their legitimacy. Extending that majoritarian power to major legislation would further erode public trust and likely increase the focus on political strategies to win a majority, rather than governing.	”
—Daniel Lips, The Federalist Society (January 20, 2021)

The filibuster reinforces the structure of the Senate

“	Eliminating the filibuster is far more than just changing some arcane procedural rule—it turns the Senate into another version of the House, where raw majorities rule, where compromises are unnecessary, and where the passions and prejudices of the moment often overcome reason and sound judgment. In practice, it is nothing short of an assault on the rights of the millions of Americans represented by the Senate minority—an assault that will have devastating consequences for our republic and our system of constitutional norms, including our most fundamental rights.	”
—John Cooper, The Heritage Foundation (December 14, 2020)

Arguments in favor of ending the filibuster

The filibuster does not support a deliberative process

“	The Senate’s rules governing the filibuster and cloture are no longer mere rules of deliberation, which each house of Congress does have constitutional power to set. For all practical purposes, they have become rules of decision as well, meaning that decisive action on any legislation demands the super-majoritarian approval of three-fifths of the Senate. Deliberation and decision have now converged; the line between them has become so permeable it no longer exists. The simple fact that opposing senators no longer need to take the floor to filibuster, much less imitate Jimmy Stewart’s bravura performance in “Mr. Smith Goes to Washington,” illustrates how little this procedure has to do with positive deliberation. ... That means the filibuster runs afoul of another constitutional norm. A well-known rule of legal construction stipulates that expressio unius est exclusio alterius: the expression of one is the exclusion of other(s). When a legal text specifically lists the instances where a rule applies, it excludes others not included in the enumeration. This rule was as familiar to Madison’s founding generation as it becomes to law students who learn it today. The Constitution explicitly tells us when super-majoritarian rules of decision are required, and it has no provision at all requiring a supermajority for the Senate to act on legislation. Because majority rule was always the default option for passing a bill, a rule of deliberation that functionally preempts a majority decision becomes constitutionally problematic.	”
—Jack Rakove, The Washington Post (February 8, 2021)

The filibuster is connected to racist policies

“	The nature of the filibuster, its rules and norms, is hardly an iron-clad tradition. It has changed and adapted greatly over the years since it first became popular in the civil rights era. But what hasn’t changed is its enduring connection to racism. The filibuster has always stood in the way of racial progress, whether employed by Southern Democrats of the Jim Crow era or the Republican Party today after a major shift in the party's stance on racial equality. When you understand the filibuster’s racist past, it becomes clear that it has a racist present as well—and that we need to get rid of it.	”
—Rashad Robinson, USA Today (March 1, 2021)

The filibuster does not have historical merit

“	Some Americans mistakenly believe the filibuster originated with the 1789 Constitution and was part of the framers’ plan for how the Senate should function. It plainly was not. The Constitution leaves it up to each house of Congress to set its own rules. Indeed, the framers considered and rejected the idea of requiring supermajorities for legislation. As Alexander Hamilton wrote in Federalist 22, 'To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.' They knew such built-in obstruction could doom a republic. Tellingly, the filibuster did not become a rule or practice of the Senate until 129 years after the Constitution was ratified. Moreover, not only is the Constitution silent on the matter, but it prescribes supermajority votes only for very specific subjects, such as treaties, making clear that a simple majority is the expectation for other circumstances, including legislation. This indicates that supermajorities, as required by the filibuster, are otherwise disfavored.	”
—Caroline Fredrickson, Brennan Center for Justice (October 30, 2020)

The filibuster overrepresents the interests of small minority

“	The filibuster empowers a minority of senators who may represent a surprisingly small percentage of Americans. Each state is assigned two senators regardless of population, so the most populous state, California—home to nearly 40 million people—has the same number of senators as Wyoming, which has fewer than 600,000 residents. That means that Wyoming voters have 68 times as much representation in the Senate as Californians. By comparison, when the Constitution was ratified, Virginia had almost 13 times as many people as Delaware—the largest disparity at the time. Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population.	”
—Alex Tausanovitch and Sam Berger, Center for American Progress (December 5, 2019)

The filibuster promotes obstructionism

“	During the Obama administration, Senate Republicans took obstruction to a new level, using the filibuster more than ever in history. But the use of the tactic had been climbing even before Obama became president, prompting recent presidents of both parties to use executive orders and other administrative tools to circumvent Congress. The Senate is already minoritarian because of the overrepresentation of small and rural states in the body. For example, California, with 39 million people, gets two senators in Washington, the same as Wyoming, Vermont, and Alaska, each of which is home to fewer than a million people. And by 2040, given projected population growth, two-thirds of Americans will be represented by just 30 percent of the Senate. Given that the executive branch has increasingly moved away from legislative initiatives because of Senate obstruction, the filibuster continues to undermine a real democracy.	”
—Caroline Fredrickson, Brennan Center for Justice (October 30, 2020)

Alternatives to maintaining the current filibuster

A third approach to the filibuster calls for keeping the mechanism but reforming its procedures. Norm Ornstein of the American Enterprise Institute for Public Policy Research wrote, "Democrats may want to instead consider reforming the procedure, so that it continues to exist for truly extraordinary circumstances, but ceases to be the easily deployed blockade it is today."

Ian Millhiser, a senior correspondent for Vox, outlined the four primary ways the filibuster could be adjusted:

• Exempt certain policy issues from filibuster and take other actions to reduce the number of bills subject to the filibuster
• Make it more difficult to initiate a filibuster
• Decrease the number of votes necessary to end the filibuster
• Shorten the timeline to invoke cloture and hold a final vote

Senators in the 117th Congress on the filibuster

This section includes a sample of statements from senators in the 117th Congress defending or opposing the filibuster.

Senators in support of the filibuster

John Barrasso

“	If Democrats go down this road and break the rules of the Senate, they’re doing more than just hurting the institution. They’re admitting that their ideas don’t have broad bipartisan support. Think about it. If the Democrats’ agenda had the support of the American people, then they wouldn’t need to change the rules.	”
—Sen. John Barrasso (R-Wyo.) (January 26, 2021)

Dianne Feinstein

“	I think the filibuster serves a purpose. It is not often used, it's often less used now than when I first came, and I think it's part of the Senate that differentiates itself.	”
—Sen. Dianne Feinstein (D-Calif.) (September 2020)

Joe Manchin

“	If I haven’t said it very plain, maybe Sen. McConnell hasn’t understood, I want to basically say it for you. That I will not vote in this Congress, that’s two years, right? I will not vote [to change the filibuster]. And I hope with that guarantee in place, [McConnell] will work in a much more amicable way.	”
—Sen. Joe Manchin (D-W.Va.) (January 2021)

Mitch McConnell

“	Today, I made clear that if Democrats ever attack the key Senate rules, it would drain the consent and comity out of the institution. A scorched-earth Senate would hardly be able to function. It wouldn’t be a progressive’s dream. It would be a nightmare. I guarantee it.	”
—Sen. Mitch McConnell (R-Ky.) (January 2021)

Kyrsten Sinema

“	[Sinema is] against eliminating the filibuster, and she is not open to changing her mind.	”
—Spokesperson for Sen. Kyrsten Sinema (D-Ariz.) (January 2021)

John Thune

“	The legislative filibuster ensures that the minority is represented in legislation. ... All Americans, whether or not they’re in the majority, deserve to be represented. But it’s particularly important when you consider that our country is pretty evenly split down the middle.	”
—Sen. John Thune (R-S.D.) (January 2021)

Senators against the filibuster

Richard Blumenthal

“	I think we ought to end the filibuster, unquestionably. It is an obstacle to conquering the pandemic and reviving the economy, getting stuff done.	”
—Sen. Richard Blumenthal (D-Conn.) (January 2021)

Ed Markey

“	The filibuster must go. It's something that's rooted in a racist past, and it's used today as a way of blocking the progressive agenda, which President Biden is proposing — [including] environmental justice, racial justice, economic justice.	”
—Sen. Ed Markey (D-Mass.) (February 2021)

Chuck Schumer

“	[Mitch McConnell] has made an extraneous demand that would place additional constraints on the majority, constraints that have never been in place before. In fact, his proposal would remove a tool [ending filibuster] that the Republican leader himself used twice in just the last Congress to accelerate the confirmation of Republican nominees.	”
—Sen. Chuck Schumer (D-N.Y.) (January 2021)

Elizabeth Warren

“	Mitch McConnell was fine with getting rid of the filibuster to a United States Supreme Court nominee for a lifetime appointment, but he's not okay getting rid of the filibuster for unemployment relief for families that are out of work because of COVID-19. I've just had enough of Mitch McConnell.	”
—Sen. Elizabeth Warren (D-Mass.) (January 2021)

Senators undecided on the filibuster

Mazie Hirono

“	There was a time when I did not support a filibuster change because the filibuster is supposed to protect the voices of the minorities. We're in the minority. I don't think our voices are being protected, so I'm open to that discussion, but it won't happen unless the Democrats take back the Senate.	”
—Sen. Mazie Hirono (D-Hawaii) (October 2020)

Angus King

“	Right now, we don't know whether it will be abused. If they're going to use it to obstruct absolutely everything, then I'm prepared to change my mind.	”
—Sen. Angus King (I-Maine) (January 2021)

Jon Tester

“	I think the filibuster serves an important purpose, but I also think that if there’s a lot of stonewalling that goes on, it doesn’t leave me a lot of choice. ... I think the filibuster’s very important, and I think it makes for better legislation, and I still believe that. I still support the filibuster, but, like I said, we’ll see what happens with the other side. Who knows what’s going to happen?	”
—Sen. Jon Tester (D-Mont.) (September 2020)

Biden's position on the filibuster

As a senator in 2005, President Joe Biden (D) defended the filibuster during floor debate in the Senate:

“	The Framers sought not to ensure simple majority rule, but to allow minority views—whether they are conservative, liberal, or moderate—to have an enduring role in the Senate in order to check the excesses of the majority. This system is now being tested in the extreme. ... I believe the proposed course of action we are hearing about these days is one that has the potential to do more damage to this system than anything that has occurred since I have become a Senator. History will judge us harshly, in my view, if we eliminate over 200 years of precedent and procedure in this body and, I might add, doing it by breaking a second rule of the Senate, and that is changing the rules of the Senate by a mere majority vote.	”
—Sen. Joe Biden (D-Del.) (2005)

When asked if he still supported the filibuster, Biden said in an interview in July 2020, "It’s going to depend on how obstreperous they [Republicans] become. ... But I think you’re going to just have to take a look at it."

During a town hall in October 2021, Biden said: "It used to be you had to stand on the floor and exhaust everything you had. When you gave up the floor, someone else sought the floor, they had to talk until they finished, You're only allowed to do it a second time. After that, it's over. You vote. I propose we bring that back now, immediately." Biden also said he would be open to doing away with the filibuster on the issue of election policy and possibly in other policy areas.

See also

• Joe Biden presidential transition
• Joe Biden's Cabinet
• Confirmation process for Joe Biden's Cabinet nominees
• Presidential election, 2020
• Ballotpedia's Daily Transition Tracker