In three of the most competitive Senate races, Democratic candidates are already campaigning on killing the Senate's 60-vote requirement for most bills, placing the chamber's arcane rules at the forefront of the nascent 2022 midterms. Those reform-minded Democrats are running on voting rights legislation, a minimum wage increase and background checks for gun purchases, arguing that they're only possible through a simple majority vote in the Senate.
If Democrats can expand their 50-seat majority by two or three seats, moderate Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) will no longer hold so much sway in a caucus increasingly interested in gutting the chamber's supermajority threshold once and for all.
"I would be surprised if there's anyone in any of these [competitive] states... that would support maintaining the filibuster," said Democratic Pennsylvania Lt. Gov. John Fetterman, who is pursuing his party's nomination for a Senate seat up for grabs next year. "Getting rid of the filibuster is as close to a litmus test for our party as I can describe."
It's basically impossible in 2022 for Democrats to pick up 10 seats and secure a filibuster-proof majority, given the Senate's current 50-50 split and their limited number of pick-up opportunities across the country. But snatching open seats in Pennsylvania, Wisconsin or North Carolina next fall while holding on elsewhere is a plausible way for Democrats to squash the legislative filibuster in 2023, provided they hold their House majority as well.
Fetterman and state Rep. Malcolm Kenyatta, the first official candidates in what's likely to be a crowded primary in Pennsylvania, both support abolishing the filibuster. Among North Carolina Democratic Senate hopefuls, former state Sen. Erica Smith supports abolishing the filibuster, while state Sen. Jeff Jackson referred to himself in an interview as "filibuster-skeptical."
Both of the announced Senate candidates in Wisconsin, Milwaukee Bucks executive Alex Lasry and Outagamie County Executive Tom Nelson, are running on an anti-filibuster platform. Lasry said it's a "relic of the past."
"I will make it an issue [in the primary] and I will make it an issue in the general so that the Republican nominee, whether it's Ron Johnson or someone else, defends it. There's absolutely no defense," Nelson said.
HISTORY OF THE FILIBUSTERA filibuster is a parliamentary procedure used in the United States Senate to prevent a measure from being brought to a vote. The most common form of filibuster occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (currently 60 out of 100) vote to bring the debate to a close by invoking cloture under Senate Rule XXII.
The ability to block a measure through extended debate was a side effect of an 1806 rule change, and was infrequently used during much of the 19th and 20th centuries. In 1970, the Senate adopted a "two-track" procedure to prevent filibusters from stopping all other Senate business. The minority then felt politically safer in threatening filibusters more regularly, which became normalized over time to the point that 60 votes are now required to end debate on nearly every controversial legislative item. As a result, "the contemporary Senate has morphed into a 60-vote institution — the new normal for approving measures or matters — a fundamental transformation from earlier years".
Efforts to limit the practice include laws that explicitly limit the time for Senate debate, notably the Congressional Budget and Impoundment Control Act of 1974 that created the budget reconciliation process. Changes in 2013 and 2017 now require only a simple majority to invoke cloture on nominations, although most legislation still requires 60 votes.
At times, the "nuclear option" has been proposed to eliminate the 60 vote threshold for certain matters before the Senate. The nuclear option is a parliamentary procedure that allows the Senate to override one of its standing rules, including the 60-vote rule to close debate, by a simple majority (51 votes if the Senators are equally divided and all 100 Senators are present - the Vice President casting the tie-breaking vote), rather than the two-thirds supermajority normally required to amend the rules.
One or more senators may still occasionally hold the floor for an extended period, sometimes without the advance knowledge of the Senate leadership. However, these "filibusters" usually result only in brief delays and do not determine outcomes, since the Senate's ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess.