In response to the leaked Supreme Court draft decision earlier this month signaling that the high court is likely to strike down the landmark Roe v. Wade decision, the U.S. Senate attempted to take up a bill to codify the 1973 opinion into law, guaranteeing people the right to an abortion. However, by a vote of 49-51, the Senate failed to invoke cloture to even begin debate on the bill, once again rekindling the discussion over abolishing the filibuster and highlighting the unbalanced power the courts have in our current system of governing.
Unequal Branches of Government
The draft opinion and ensuing events on Capitol Hill this month demonstrated how our governing constitutional institutions are no longer coequal branches that can provide checks on one another. Until 2017, Supreme Court nominees needed 60 votes to be confirmed. That changed when then-Senate Majority Leader Mitch McConnell (R-KY) pushed through a rule change, known as the “nuclear option,” reducing the threshold for Supreme Court nominees to a simple majority (50% plus one). It is worth noting that Democrats went nuclear first in 2013, when they eliminated the filibuster on all presidential nominees, including judicial nominees, except those nominated to the Supreme Court. Partisan tit-for-tat over nominations goes back even further, though the precise starting point is itself a matter of partisan debate. Nevertheless, history underscores the precedent that can be created when one side changes the rules to push through their nominees or political agenda.
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The change in voting for Supreme Court nominees created an imbalanced power between the courts and Congress. The Supreme Court, which is supposed to be a coequal branch of government, could always overturn laws and decades-old judicial precedent with a simple majority of justices. Now, those justices can be installed by a simple majority in Congress. However, Congress cannot nimbly legislate to fix the issues the high court impacts because the Senate still requires a supermajority (60 votes or three-fifths of all senators “duly chosen and sworn”) to pass legislation. To put it more simply, it takes 51 votes to confirm Supreme Court justices — who can make wide-ranging decisions impacting people across the country — to a lifetime appointment, but U.S. senators cannot legislate on the same issues without 60 votes.
For example, in 2013, the Supreme Court ruled in a 5-4 decision in Shelby County v. Holder that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional. As a result, nine states and scores of counties and municipalities in other states no longer needed federal approval to change their election laws. This case has been consequential. The nonpartisan Voting Rights Lab found in 2021 that nine states enacted laws to restrict the access to vote, while the Brennan Center for Justice, a nonpartisan law and policy organization, found 10 more states, representing a total of 19 states that passed 34 laws restricting access to voting in one year alone. Because the Senate repeatedly failed to reach the required 60-vote threshold, it failed to restore elements of the Voting Rights Act and to push back against efforts to enact new restrictive state voting laws, despite widespread public support for such legislation. The Project On Government Oversight (POGO) supported Congress’s efforts to restore such voting protections.
A cornerstone of our constitutional system is having three separate but coequal branches of government that can provide a check on each other. Unfortunately, the current filibuster structure does not allow for this.
There are several ways to address this imbalance. At the extremes, the Senate could either eliminate the filibuster entirely, which would bring the threshold for legislation down to 51 votes, or it could reinstate the 60-vote threshold for confirmations.
But this is a false choice. While eliminating the filibuster may seem like the easier option, it would create a cycle in which laws imposed during certain years — good or bad — would then be repealed in the following years, then imposed and repealed again. This would only exacerbate the hyper-partisanship plaguing our society today. At the same time, hyper-partisanship may make restoring the 60-vote threshold for all nominees difficult to achieve. This, too, is not a good solution, because it would make it harder for the Senate to reach agreement on otherwise qualified nominees.
Instead, as POGO wrote in December 2021, we advocate reinstating the speaking requirement for the legislative filibuster, returning to the pre-1975 voting threshold of “present and voting,” and inverting the existing procedure to shift the burden from the majority overcoming the filibuster to the minority upholding it. This would keep some incentives for bipartisan compromise while allowing the Senate to act more nimbly by reducing the overall use of the filibuster.
Implementing the reforms we have proposed would bring the Senate, and Congress as a whole, closer to being the coequal branch it is supposed to be.
Reviving the Filibuster Reform Debate
Given the heightened attention around the filibuster, we also wanted to take this opportunity to explain why abolishing the filibuster is not the clear solution it could appear to be.
When reaching a policy position, it is imperative to think not only of the short-term gains it will yield but also the potential long-term harm or negative consequences that can result. Eliminating the filibuster could mean those legislators who have an alternative — or even harmful — policy position can prevail when they gain a bare majority. For example, if the Senate eliminated the filibuster to pass an abortion rights bill, it is not unreasonable to think that a different majority could later pursue a bill that would roll back abortion rights or even institute a federal ban. Axing the filibuster to pass an abortion rights bill could create an environment where abortion is legal for a period of just a few short years, while teeing up a process to eventually outlaw abortion nationwide. The same could be said about almost any other policy issue. This situation would establish a regulatory environment that could change every two to four years on a range of policy areas.
This scenario is not just a hypothetical. Senate Minority Leader Mitch McConnell recently said in an interview with USA Today that a national abortion ban is “possible” if Roe v. Wade gets overturned this summer. He provided a critical caveat, saying he would not change the filibuster to pass it. However, if the filibuster were eliminated and Republicans won back the Senate, McConnell would not have to break his promise to pass a national abortion ban.
Furthermore, when talking about abolishing the filibuster to enact abortion rights legislation, it is worth noting that the filibuster has historically been used to protect abortion rights. In 2015, a minority of 46 senators employed a filibuster to prevent passage of a bill that would have barred all federal funds for Planned Parenthood. More recently, in 2018, a minority of 46 senators succeeded in blocking a bill that would have banned most abortions after 20 weeks of pregnancy.
Abolishing the filibuster to pass any given law is not a silver bullet. In fact, it could set a dangerous precedent.
During high-profile debates on consequential issues, it is natural to think of ways to achieve one’s legislative goals, including the elimination of the filibuster. There is no question that eliminating the filibuster outright could deliver a legislative victory in the short term. But using that procedure could set a precedent for it to be used by partisan legislators in years to come, possibly delivering outcomes that are counter to those intended or even worse than the initial problem repealing the filibuster aimed to address.
While the filibuster has been abused in recent years, eliminating it is not the answer. Instead, when the political dust settles, senators of both parties should have a conversation on how to reform the filibuster so it works for all Americans. These filibuster reforms would reduce the hypocritical legislative-confirmation conundrum by making Congress more like the coequal branch of government it should be.
Originally published on May 19, 2022, this analysis has been revised to include a more detailed account of POGO's position.