Impact of Curtailment of the Senate Filibuster on Employment Policy

March 12, 2021

In the wake of their minimum wage increase defeat, progressives are ramping up pressure on Senate Democrats to eliminate the 60-vote requirement for shutting off a filibuster, which prevents legislation from proceeding in the Senate.  Moderate Democrats like Sen. Joe Manchin (D-WV) will hold the key, and he is now signaling a willingness to change the rules in order to ease the path for more measures.

The “Mr. Smith” model:   Years ago, filibusters were used on a very limited basis. As depicted in “Mr. Smith Goes to Washington,” one or more Senators would take advantage of the Senate’s rule allowing unlimited debate by talking endlessly until their colleagues lost patience and moved on to another bill.  The speakers could only be cut off if at least 60 Senators voted to invoke “cloture,” which cuts off debate and allows a vote.

A loss of patience:  After a few taxing experiences with these in the previous century, the Senate leadership of both parties decided to avoid delay by simply holding a cloture vote at the outset of any controversial measure and only allow consideration when cloture was invoked.  The result has been a dearth of new laws in controversial areas.

Potential “talking filibuster” requirement:  Senator Manchin asserts it is essentially “painless” for opponents of a bill to simply threaten a filibuster to achieve their goal.  Without eliminating the filibuster, he suggests: “If you want to make it a little bit more painful, make him stand there and talk.  I’m willing to look at any way we can, but I'm not willing to take away the involvement of the minority.”  Crafting such a limitation on filibusters would be a challenge for the parliamentary legal experts, but an effort is looking more and more likely.

Why it’s important:   Historically, employment legislation has been among the most controversial regardless of which party is in power.   Filibusters and cloture votes are almost always a given.  The result has been very few new significant laws over the past fifty years.  With a “talking filibuster” requirement, opponents of bills would need to find committed, energetic champions who would also be willing to be highly visible for a lengthy period of time talking against measures that may have widespread popularity.  While “opening the floodgates” may be an overstatement, a stream of new employment laws would seem likely.