Gabe Fleisher, a Post Opinions contributor, is the author of the Wake Up To Politics newsletter.
To hear it spoken of in Washington, the filibuster is either a bogeyman or a boon: a dreaded obstacle to reform or an essential tool to slow things down. Most politicos fall into either camp. It’s too bad. They both have a point.
For most legislation, breaking a filibuster and ending debate requires the Senate to find 60 votes to invoke what’s known as cloture. Critics are right that the three-fifths threshold can make it too difficult to get things done. The paralysis it has engendered has inspired incredible popular discontent. Both parties now flirt with abolishing the procedure.
Its supporters, however, rightly argue that doing so would create chaos worse than the current stasis. Think of the seesawing of executive actions as the presidency changes — we’re in the Paris climate agreement, then we’re not; we’re back in, then we’re out again — and expand it to include every area of law.
A president’s legacy is currently defined by the one or two accomplishments he can unlock through the 51-vote reconciliation process. Barack Obama is known for the Affordable Care Act (a partial product of reconciliation), and Trump for the One Big Beautiful Bill Act. In post-filibuster, simple-majority world, the chief executive would pursue countless partisan priorities. Those would pass easily but get revoked and revived constantly depending on who next assumed power. It would be impossible for businesses, citizens or allies to plan for the future.
Instead of adopting either stance, the Senate could pursue a middle ground: Eliminate the filibuster … sometimes. That would entail adopting a rule that keeps the 60-vote threshold when one political party has a trifecta (control of the House, Senate and White House) but drops it when those three bodies aren’t in the same party’s hands. It would allow for a more productive Congress while ensuring there is always a bipartisan check on legislative action.
Attempted compromises from the last two years of President Joe Biden’s term, when Republicans controlled the House and Democrats the Senate, provide examples of bills that might have benefited from this arrangement. The 2024 bipartisan tax deal would have expanded the child tax credit while extending some of the Trump-era corporate tax cuts. It passed the House, 357-70, but failed to overcome the Senate filibuster. Republicans were hoping for a better deal if they won a trifecta in the next election. A border-security deal failed the same year for similar reasons.
Deeper in the legislative graveyard: Sens. Joe Manchin and Pat Toomey’s 2013 gun control bill would have passed the upper chamber with 54 votes. The immigration proposal that’s been on offer for years — enhanced border security for a pathway to citizenship — would also likely have been approved by now.
What these measures have in common is that they were bipartisan agreements hammered out by levelheaded legislators during times of divided government. None became law, allowing some issues to be handled by unilateral executive action and others to be addressed through partisan reconciliation. Some weren’t able to pass the House or even command a simple Senate majority. The filibuster still contributed to their demises by fostering a culture in which such measures were taken less seriously. Everyone knew the 60-vote threshold was standing in their way or at least offered a convenient obstacle to blame.
Critics might contend that a dynamic filibuster would solve nothing: Parties would simply refuse to work together during times of divided government. Yet that isn’t historically true. In his 1990 book “Divided We Govern,” Yale University professor David Mayhew found that divided governments were about as productive as united governments between 1946 and 2002. Princeton University’s Frances Lee and the University of Notre Dame’s James Curry extended that finding into the modern era. From 1985 to 2018, majority parties achieved some form of success on their priorities during divided power 51 percent of the time, compared with 57 percent during united.
The rules could make such compromise more common and open the door to more of the bipartisanship Americans say they want. Agreements on hot-button issues that have previously gotten close to passing could finally be nudged over the finish line. The wheels of governing could spin faster but still not so fast that political trifectas could steamroll their opponents. Congress could pursue additional reforms — such as subjecting reconciliation to a 60-vote threshold — to close off any potential work-arounds.
The country is likely to enter a period of divided government in January, but it needn’t be one of absolute division. The public can’t afford a two-year legislative drought anyway. If lawmakers are able to compromise, say, on Social Security’s impending insolvency, Senate rules shouldn’t stop them. The check that voters will have already provided — a president of one party, at least one chamber of Congress controlled by the other — will suffice. Negotiation can and ought to be made great again.
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