As Republicans put up barriers to voting across the country, it is more urgent than ever that the Senate protect the freedom to vote. After Senate Republicans filibustered debate on the For the People Act (H.R.1/S.1), it is clear that Senate Democrats must do what countless Senators have done before them: modify the filibuster to allow the Senate to function.
As the Senate finds itself paralyzed at a moment when inaction is no an option, this task has never been more important.
The filibuster can be and frequently has been altered:
- The filibuster is not in the Constitution. The Founders explicitly listed the only instances, such as impeachment, when the Senate would require a supermajority for passage.
- Former Senate Majority Leader Robert Byrd worried that the filibuster would paralyze the Senate. In 1975 and 1980, Byrd made changes to the filibuster rule.
- The Senate has altered the filibuster to enshrine a 50 vote threshold in a number of areas, including for trade deals, budgets and tax cuts (reconciliation), to close military bases, and to confirm judges.
- Since 1969, the Senate has used exceptions to the filibuster’s supermajority requirement more than 161 times to pass legislation and confirm nominations, and recently did so for the American Rescue Act and the confirmations of Justices Gorsuch and Kavanaugh.
While the filibuster has most often been used as a tool to block civil rights, the Senate has a history of protecting voting rights with one party support when the other party itself is posing a threat to the freedom to vote:
- Between 1866 and 1890, many landmark pieces of civil rights laws that were essential to protecting the constitutional rights of Americans of color—including both the Fourteenth and Fifteenth Amendments—passed on strict party-line votes.
- From 1917 to 1994, half of the bills that were successfully filibustered in the Senate were civil rights legislation.
- In 1959, the Senate altered filibuster requirements after unprecedented filibusters on civil rights legislation.
One key Senator — Joe Manchin — has a history of supporting changes to the filibuster and using exemptions to it.
- In 2011, he co-sponsored a resolution to eliminate the filibuster on motions to begin debate.
- A bill and a resolution to revise the filibuster rules to require Senators to actually take the floor and filibuster by making remarks.
- Manchin used the filibuster change created by then Senate Republican Leader Mitch McConnell in 2017 to confirm Supreme Court nominees Neil Gorsuch and Brett Kavanaugh.
- Manchin voted for the American Rescue Plan which was passed via the budget reconciliation process, a massive exception to the filibuster used repeatedly by Congress and largely crafted by his predecessor, Senator Robert C. Byrd.