Jun 30, 2022 - Politics & Policy

The filibuster explained — and what Biden's proposal to change it means

President Joe Biden holds a press conference on the last day of the NATO Summit at the IFEMA Convention Center, in Madrid, Spain on June 30, 2022.
Photo: Burak Akbulut/Anadolu Agency via Getty Images

President Biden made waves on Thursday when he said that he supported a carve-out to the filibuster to codify abortion rights.

Why it matters: The filibuster has been a roadblock for Democrats, who have a slim majority, seeking to push their legislative agenda — and that's unlikely to change anytime soon, even with Biden's comments on Thursday.

  • Below is a brief look at the filibuster — what it is, how it's changed over time and what stands in Democrats' way of nixing it.
What is the filibuster and how does it work?

The filibuster, a Senate rule that requires 60 votes to pass legislation, is a loosely defined term that allows unlimited debate on a bill, usually in an effort to delay or prevent a vote on the measure.

  • The Senate can end debate on a bill with a three-fifths majority, or 60 of 100 senators, which means that at least 60 senators would need to back legislation in order to skirt the filibuster.
  • That's a rarity — especially with the current makeup in the Senate, as Democrats only have 50 senators and most votes are passed along party lines.
  • A senator seeking to filibuster legislation doesn't need to stand on the Senate floor and debate it endlessly — though that has happened before — in order to bring it to a standstill. A senator can simply signal their intent to filibuster a bill and it is effectively blocked.
How has the filibuster changed?

In the past, the filibuster applied to both judicial and political nominations, but Democrats in 2013 voted to eliminate it for all judicial nominations, with the exception of Supreme Court justices, the New York Times reports.

  • After former President Trump's inauguration, Republicans in 2017 voted to eliminate the filibuster for Supreme Court justices, subsequently paving the way for the GOP to put three conservative justices on the court.
  • Legislation can still be stymied by a filibuster — but some Democratic lawmakers have been increasing calls to remove it, especially in the wake of the Supreme Court decision overturning Roe v. Wade.
Why do some Democrats want to abolish the filibuster and what's stopping them?

Over the last year, Democrats have floated a number of changes to the filibuster, including reducing the 60-vote threshold to 55, and others have called for getting rid of the rule completely.

  • Democrats in favor of getting rid of the filibuster, or at least changing it, say that they should do so while they have the majority.
  • The Supreme Court's decision overturning Roe triggered stronger calls among lawmakers to eliminate the filibuster, including from Sen. Bernie Sanders (I-Vt.), who said: "Democrats must now end the filibuster in the Senate, codify Roe v. Wade, and once again make abortion legal and safe."
  • Two Democrats — Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) — have remained steadfast in their opposition to the ending the filibuster, largely citing fears over losing what they say could be an avenue to any bipartisan cooperation.
  • "The filibuster is a protection of democracy," Manchin said in May.
Could Biden's proposal to carve out an exception for abortion rights be successful?

It's unlikely. For one, Democrats lack the 50 votes necessary to change the filibuster. Plus, Manchin has also opposed enshrining abortion rights into federal law, the Post notes.

  • Yes, but: Biden doubled down on his calls to end the filibuster to codify abortion rights after his speech on Thursday.
  • "We have to codify Roe v. Wade into law. And as I said this morning: If the filibuster gets in the way, then we need to make an exception to get it done," he wrote in a tweet.

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