Why the Filibuster Is the Best Friend a Minority Party Ever Had

Let me describe a political law of nature, one as reliable as gravity. When a party holds the Senate majority and feels the wind at its back, it discovers that the filibuster is an outrage, a relic, an undemocratic scandal, a tool of obstruction that betrays the will of the voters. When that same party loses the majority, it rediscovers, with tears in its eyes, that the filibuster is a sacred guardian of minority rights, a bulwark of liberty and a gift from the wise old men who built the Senate. The party changes. The speech does not change. Both sides have delivered both speeches, sometimes within the same decade, and occasionally from the same senators.

I find this hilarious, and I also find it instructive. When every faction ends up defending the same rule once it is out of power, you are looking at something more than a partisan tool. You are looking at an insurance policy that everyone eventually needs. This post makes the case, honestly and with the best counterargument stated at full strength, that conservatives should keep the 60-vote threshold, and that the reasons have nothing to do with which letter follows the name of the majority leader.

What the filibuster is, and where it came from

Start with the plain fact: the Constitution does not mention it. Article I, Section 5 says each house may determine the rules of its proceedings, and the Senate wrote rules that, from the early years, put no limit on how long a senator could speak. In the 1789 rules there was a motion to cut off debate, called the previous question, but the Senate dropped it in 1806 as part of a cleanup of its rulebook, and for more than a century nobody had a formal way to end debate against a determined senator. Unlimited debate became the Senate's habit, and then its tradition.

The first formal brake came in 1917. As the country moved toward entering the First World War, a small group of senators filibustered a bill to arm American merchant ships, and President Woodrow Wilson publicly condemned "a little group of wilful men" who had made the government helpless. The Senate responded on March 8, 1917, by adopting Rule XXII, which allowed debate to be closed by a cloture vote of two-thirds of the senators present and voting. For decades that was a high bar and cloture was used sparingly. In 1964, as we explain in Republicans Delivered the Votes That Broke the 1964 Filibuster, it was used for the first time against a filibuster of a civil rights bill.

In 1975, the Senate lowered the threshold for most matters to three-fifths of the senators duly chosen and sworn. With 100 senators, that is 60 votes (100 times three-fifths equals 60). Changing the Senate's own rules still requires two-thirds of those present and voting to end debate. Over the following decades, the practice changed too. Senators no longer had to hold the floor and talk for hours. The mere threat of a filibuster became enough, so the real rule in the modern Senate is that major legislation needs 60 votes, not 51.

The nominations changes: 2013 and 2017

Then came the part both parties would like to forget. In November 2013, Senate Democrats, then in the majority and frustrated by Republican blocks on President Obama's nominees, used a procedural maneuver, what the press called the "nuclear option," to set a precedent that executive-branch nominations and lower-court judges could be cleared by simple majority. They did not change the written rule. They overruled the chair's interpretation by majority vote, which established a new precedent. Supreme Court nominees were left out of the change.

Republicans had been there before the threat. In 2005, when Democrats filibustered some of President George W. Bush's judicial nominees, Republican Majority Leader Bill Frist threatened to eliminate the filibuster for judges, a step Republicans then called the "constitutional option." A bipartisan group of fourteen senators, the "Gang of 14," struck a deal in May 2005 that avoided the showdown. Seven senators from each party joined it. Notice the pattern: each party that was blocked threatened to change the rules, and each party that was doing the blocking defended them.

In April 2017, Republicans, now in the majority, extended the 2013 precedent to Supreme Court nominees in order to confirm Neil Gorsuch. So today a nomination, including a Supreme Court nomination, needs only a simple majority at the cloture stage. If you want the long arc of how that changed confirmations, our timeline of From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations has it, and the mechanics of the whole process are in Every Step in Confirming a Federal Judge, from Vacancy to Oath.

What did not change, in either 2013 or 2017, is the 60-vote threshold for ordinary legislation. That one has been the subject of pressure ever since, from both sides. President Trump, in his first term, urged the Senate to get rid of it, and Senate Republicans, who held the majority, declined. When Democrats held the Senate in 2021 and early 2022, their party's leaders and activists pushed to carve an exception into the filibuster for voting-rights legislation, and the effort failed in January 2022 because at least two Democratic senators, Joe Manchin and Kyrsten Sinema, refused to go along. In other words, in both cases the decisive voice for keeping the rule came from inside the majority party. That is a clue to how seriously senators take it when they stop and think about their own future.

The case, in five numbered premises

Let me lay out the argument the way a debater would.

1. The Senate was designed to be the slower, more deliberate chamber. The Founders gave it longer terms, equal representation for each state, and a smaller size to make it the brake on the House. You can read Madison's reasoning in Madison Built a Government Where Ambition Fights Ambition, and It Works. The filibuster is a Senate-made rule rather than a constitutional one, but it extends a design principle the Constitution already embraces.
2. A supermajority requirement protects whoever is in the minority, and everyone is in the minority sometimes. A rule that costs you in two years pays you back in four. The rule's value is not in who wins today. It is in what you can block tomorrow.
3. A law that must attract more than a bare majority is a law with more support, and more support means more durability. A statute passed on a party-line vote can be repealed on a party-line vote.
4. The cost of blocking a bad bill is lower than the cost of passing one. Legislation binds three hundred million people. A delay costs time. An error can cost years.
5. The 60-vote rule forces the majority to negotiate, and negotiation improves bills. Dirksen's changes to the 1964 Civil Rights Act made a stronger and more broadly supported law.

Premise three deserves a worked example. The Tax Cuts and Jobs Act was signed in December 2017 and passed through the budget reconciliation process, which requires only a simple majority. Reconciliation comes with the Byrd rule, which limits provisions that increase deficits outside the budget window. Because of that, most of the law's individual income tax changes were written to expire after 2025. A law that could pass with 51 votes could not, under those rules, last forever. A bill that wins 60 votes carries no such limit. It is stable because it is bipartisan. A law with only one party's fingerprints stays vulnerable to the first election.

The strongest objection: "It lets a minority block the majority's mandate"

Now the other side. The best version of the argument against the filibuster goes like this, and I want to give it its due. Voters elect a party to carry out a platform. The party wins the House, the Senate and the White House. Then a minority of senators, perhaps representing a small share of the country's population, uses an unwritten procedural trick to block everything the voters just endorsed. It is rule by the minority. Hamilton himself, in Federalist 22, complained that requiring more than a majority for decisions gives power to a minority to control the majority, and Madison argued in Federalist 58 that majority rule is the fundamental principle of free government. Where does the filibuster appear in the Constitution? Nowhere. The Constitution requires supermajorities only for specific things: treaties, impeachment convictions, veto overrides, amendments. Not for passing laws.

That is the best argument, so here is the answer, point by point.

First, the Constitution sets very few supermajority requirements, but it explicitly lets each house write its own rules. The Senate is acting within its constitutional authority. Hamilton's complaint in Federalist 22 was aimed at the Articles of Confederation, which needed nine of thirteen states for important decisions. The Constitution is built differently: it has two chambers, a veto and a Senate where Wyoming has the same two votes as California. If you object to a minority blocking a majority, the filibuster is not the first thing you would object to. The Senate is a minority-protecting institution by design.

Second, "mandate" is a slippery word. A party that wins a Senate majority has won it with only about a third of the seats on the ballot in any given election. It has a majority of the Senate; it does not have a mandate for every plank on its platform. Voters choose a team, not a list. The notion that the winner earned the right to pass whatever it wanted ignores the fact that the voters also sent other people to the other chamber and the executive branch.

Third, the filibuster has a cost for the minority too. Minority senators who block legislation pay a political price at the next election. The rule does not give them a free veto. It gives them a negotiating position and the responsibility that comes with it.

Fourth, the majority is not powerless. It can use reconciliation for budget items, it can confirm nominees by simple majority, and it can bring bills to the floor and force the minority to vote against them on the record. What it cannot do is jam through sweeping, permanent change on the support of a bare majority. That is an acceptable limit.

Fifth, the alternative is volatility. Picture a small-business owner, hypothetically, trying to plan for the next ten years. If every change in control of Washington meant a total rewriting of the rules on health coverage, taxes, labor law and energy, that owner would be unable to plan. Predictable law has real economic value. The filibuster slows the swings. A more stable country is a more prosperous one.

A hypothetical to make it concrete

Let me run the experiment, and I'll label it as a hypothetical so nobody mistakes it for history. Imagine the filibuster is gone tomorrow and any bill can pass the Senate with 51 votes. In year one, the majority party passes its biggest priorities, say a sweeping rewrite of how health coverage works. In year three, the voters flip the Senate by a handful of seats. In year four, the new majority repeals the whole thing with 51 votes and passes its own. In year six the seats flip again. Now try to be the family choosing a health plan, the farmer deciding whether to buy a new combine, or the owner deciding whether to open a second shop. Every one of them is making a ten-year decision on a two-year rule. The people who profit from that world are the lobbyists and the consultants who sell certainty to the nervous. The people who lose are everyone who has to live and work under the rules.

Now run the same experiment with the 60-vote rule. The big bill in year one has to attract a few members of the other party, which means it has to be something a few of them can live with. It will be less sweeping. It will also be harder to repeal, because some of the people who now own it sit across the aisle. That is the trade. You give up speed and purity, and you get stability and buy-in. For a country as big and divided as ours, I would take that trade every time.

What a conservative should say next

One more consideration, and it is a conservative one. The conservative tradition is, in part, a philosophy of caution about concentrated power and a respect for institutions that outlive any administration. We should be the last people to cheer tearing down a rule because the current majority finds it inconvenient. Our side cannot know which party will hold the White House five or ten years from now, and I'd rather have the 60-vote rule on my side then than a promise from the other party that they will play nice. History says they will not, and neither will we.

None of this means the rule is sacred. The Senate can and should debate reforms: a return to the talking filibuster, so that those blocking a bill have to hold the floor and explain themselves, or tighter limits on the use of procedural delays. Those are reasonable ideas to discuss. The real question is whether to treat a majority of 51 as enough to do anything it wants, and the answer from the Founders and from common sense is no. For what a party can do while it lacks the majority, see What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor, and for the path any bill must walk, How a Bill Really Becomes Law, Including the Steps Schoolhouse Rock Skipped.

The bottom line

• The filibuster is not in the Constitution. It is a Senate rule, shaped in 1917 and 1975, and the Senate has the constitutional power to write and keep its own rules.
• Both parties have attacked it when in the majority and defended it when in the minority. Treat any politician's position on it with that history in mind.
• The 60-vote threshold forces compromise, and laws built on compromise last longer than laws passed on a bare majority. Ask yourself whether you would rather have a fight every four years or a law that stays.
• When a friend says the rule blocks the will of the voters, grant that the objection is serious, then point out that the Senate was built to protect minorities, and that you will want that protection the next time your side is outvoted.
• If you want to change the rule, say so out loud and defend the change for both parties, in the open, with Congress's own procedure and the Constitution's amendment process in mind.