The Impact of the Filibuster on Federal Policymaking

A basic fact of modern American lawmaking at the federal level is that most bills can only pass if they have 60 or more votes in the Senate—unless the bill is subject to special procedures. Without 60 votes, any senator can block most bills using a procedure known as the filibuster.

At its core, the filibuster is a rule that makes it harder for Congress to pass laws. For senators in the minority, this is an advantage; they can prevent their opponents from passing bills that they do not like or force the majority to negotiate changes, provided they have the 41 votes needed to sustain a filibuster.

But with the country persistently split along party lines, today there is often a vast, unbridgeable divide between the 51st and 60th vote in the Senate. And that means that the filibuster effectively stymies most major legislation. When coupled with the rapid increase in its use, the filibuster has had a substantial effect on policymaking over the past few decades.

This report looks at the impact of the filibuster on legislative policymaking, describing how the filibuster came to be; its increased use; the disproportionate power it provides to a small segment of society; and what legislative priorities it has been used to derail.

There is a stubborn myth that the filibuster is part of the Founders’ vision of government.¹ However, not only does the U.S. Constitution make no mention of the filibuster, it also appears to assume that legislative decisions would be made by majority vote.² The evidence suggests that the filibuster arose not out of any founding principles but instead out of “tenuous precedents and informal practices.”³

In fact, for much of early U.S. history, the Senate operated essentially by majority rule. Until 1806, a Senate rule allowed a simple majority to end debate on a bill and move to a vote.⁴ And when that rule was eliminated, in 1806, it appears that it was by mistake—senators were merely cleaning up their rulebook, on the advice of Vice President Aaron Burr, and did not realize that they had opened the door to unlimited obstruction.⁵ The first filibuster did not occur until more than 30 years later in 1837.⁶

The term filibuster entered use even later, in the 1850s, when it described the practice of senators giving lengthy speeches to delay a vote on a bill.⁷ Still, the filibuster was not commonly used—”in general, legislation passed by majority rule.”⁸ One reason may have been that, in order to sustain a filibuster, senators had to actually stand on the Senate floor and continue to speak—not an easy exercise to maintain indefinitely. When senators did so, it served more to delay legislation than to defeat it. In fact, “almost every filibustered measure before 1880 was eventually passed.”⁹

The modern-day filibuster is largely the product of two significant reforms: one in 1917 and another in 1974. During World War I, before the United States had entered the war, a group of 11 senators filibustered a bill that would have armed American merchant ships to protect them from attacks by German U-boats.¹⁰ Shortly thereafter, President Woodrow Wilson made a statement, published in The New York Times, stating that “[t]he Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.”¹¹ Referring to the 11 senators as “a little group of willful men,” Wilson stated, “The only remedy is that the rules of the Senate shall be so altered that it can act.”¹²

Days later, the Senate met in a special session to consider rules that would break the logjam and allow the Senate to act. The new rules included what the senators termed a cloture motion, which allowed senators, by a vote of two-thirds of those present, to limit debate to one hour before proceeding to a majority vote on a bill.¹³ For almost 50 years after the adoption of the new rules, cloture votes to end debate were exceedingly rare.¹⁴

The one issue for which the filibuster proved a major obstacle in the decades that followed was civil rights. From the late 1920s through the 1960s, the filibuster was primarily used by Southern senators to block legislation that would have protected civil rights¹⁵—anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting.¹⁶ These anti-civil rights filibusters were often justified with “inflated rhetoric about an alleged Senate tradition of respecting minority rights and the value of extended debate on issues of great importance.”¹⁷ But belying this rhetoric, conservatives during this period generally refrained from engaging in filibusters on issues other than civil rights.¹⁸

Some of the most notorious filibusters in American history were against the Civil Rights Acts of 1957 and 1964. During the filibuster of the 1957 Civil Rights Act, then-Democratic Sen. Strom Thurmond set a record by holding the Senate floor continually for 24 hours and 18 minutes.¹⁹ Seven years later, the ultimately unsuccessful effort to obstruct the Civil Rights Act of 1964 lasted a total of 74 days and received major ongoing news coverage—ultimately helping to galvanize the public and break through the Southern opposition to civil rights.²⁰

In the early 1970s, the filibuster became more common and was used to block a broader range of legislation.²¹ There had never been more than five filibusters in a single year prior to 1966, but there were 10 each year from 1971 to 1973 and 18 filibusters in 1974.²² This created renewed pressure for reform. Some reformers, including Democratic Sen. Walter Mondale of Minnesota, wanted a cloture rule that required only a majority vote.²³ Mondale, however, along with Kansas Republican Sen. James Pearson, ultimately proposed a bipartisan compromise to reduce the threshold for cloture from a vote of two-thirds of the chamber to a vote of three-fifths—the current 60-vote threshold.²⁴

Importantly, around the same time, an innovation in Senate procedure allowed senators to filibuster without bringing the entire Senate to a halt.²⁵ Under the new system of tracking legislation, implemented without any formal changes to the rules, multiple bills could remain pending on the Senate floor at one time, so legislation facing a filibuster threat could now simply be “kept on the back burner” until the majority managed to get 60 votes in favor of cloture.²⁶ To the extent that senators had any qualms about holding up Senate business the tracking system smoothed their path for unlimited use of the filibuster. Senators no longer physically occupy the Senate floor and speak in order to block a vote—they simply announce their intent to filibuster a bill, and the Senate either holds a cloture vote or moves on to other business.

On occasion, a senator may vote for cloture in order to allow a debate on a bill, even if they do not support its passage. But in practice, such instances are rare and senators who vote to allow debate on a bill usually support its passage.

This is largely the filibuster as it exists today: The only way to end debate and proceed to a vote is a cloture motion, which requires 60 votes to pass. Senators can filibuster simply by expressing their intention to do so, and if a filibuster is expected, then a bill will often not be brought to a vote. In 2003, political scientist David Mayhew summarized the status quo as “[a]utomatic failure for bills not reaching the 60 mark.”²⁷

Not all modern filibusters can be easily identified because even the mere threat of a filibuster can be enough to prevent consideration of a bill, and there’s no easy source of data on threatened filibusters. However, the Senate does publicly report the number of cloture votes held—votes to break a filibuster in progress. Those numbers, captured in the table below,²⁸ tell a clear story: The number of filibusters has skyrocketed. From 1917, when the cloture rule was put in place, to 1970, there were fewer than 60 cloture motions; the most notable filibusters where those blocking civil rights legislation.²⁹ Between 1970 and 2000, cloture votes increased to an average of about 17 per year. Finally, starting in the 2000s, minority parties in the Senate began to routinely filibuster substantive legislation proposed by the other party. During this period, from 2000 to 2018, an average of 53 cloture votes were held every year, with a continuing trend upward.

Cloture votes reached a high of 218 for the two-year period under the 113th Congress (2013–2014). In the most recent full session, the 115th Congress (2017–2018), there were 168 cloture votes. This was a Congress that the conservative R Street Institute described as “more dysfunctional than ever”—only 52 pieces of legislation were passed in the Senate by a recorded vote.³⁰

The filibuster empowers a minority of senators who may represent a surprisingly small percentage of Americans. Each state is assigned two senators regardless of population, so the most populous state, California—home to nearly 40 million people—has the same number of senators as Wyoming, which has fewer than 600,000 residents. That means that Wyoming voters have 68 times as much representation in the Senate as Californians. By comparison, when the Constitution was ratified, Virginia had almost 13 times as many people as Delaware—the largest disparity at the time.³¹

Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population. Of course, in most cases, it is unlikely that the smallest states would all band together to filibuster because some small states predominantly elect Democratic senators and others predominantly elect Republicans. But the problem is not alleviated by taking into consideration the partisan leanings of states.

For example, the 21 least-populous states currently represented by two Republican senators—enough to sustain a filibuster—represent less than 25 percent of the U.S. population. Democrats currently have two senators in 18 states, and those states represent about 41 percent of the U.S. population.³² If you include five additional Democrats from the least populous states that have one Democratic senator—enough to sustain a filibuster—then they would represent about 46 percent of the population.³³ Also, consider that many voters do not support the winning candidate in their state. The implication is that, at any time, a very small percentage of the population can elect enough senators to block the will of a much larger majority of Americans.

Note that because senators represent uneven numbers of Americans, even the majority in the Senate may not quite represent a majority of Americans. In those cases, the filibuster can be used by a minority of senators to prevent an outcome that itself lacks majority support among the American people.

It is easy to demonstrate that the filibuster has increased in use and that it allows a small minority to frustrate the will of the majority. It is not easy, however, to quantify the actual impact of the filibuster. To provide a sense of the filibuster’s impact, this report first examines significant bills that were blocked by filibusters. Second, it provides examples of legislation that never made it to a vote in the first place because senators assumed these bills would be blocked by the filibuster.

The list of bills is intended to capture significant policy changes that would have gone into effect if not for the filibuster. It is composed of bills considered since the beginning of the Clinton administration that: 1) had the support of a majority of senators; 2) were subject to a filibuster but lacked the 60 votes to overcome it; and 3) would likely have become law if passed by the Senate.

The last criteria is important because many bills that pass one chamber of Congress do not become law, particularly in periods of divided government. Consider, for example, Senate Democrats’ 2012 effort to pass the Buffett Rule, which would have set a 30 percent minimum tax for individuals with an annual income of more than $2 million, phasing in gradually for individuals with an income of more than $1 million.³⁴ The bill was supported by 51 senators—all Democrats—but failed to overcome a Republican filibuster.³⁵ However, even if it had passed in the Senate, it almost undoubtedly would have failed in the House of Representatives, which the Republican Party controlled by a substantial margin. Therefore, the filibuster did not really stop the Buffett Rule from becoming law, as it never stood a chance from the start. This is not to say that passage of a bill through the Senate under divided government cannot affect the political dynamics in the House but simply that virtually all bills that could have garnered 51 votes in the Senate likely would still not have become law under divided government.

In order to exclude filibusters of bills that would be unlikely to pass in divided government, the list below is limited to periods of trifecta government—where one party had majority control of the House and Senate as well as control of the presidency. Since at least the 1990s, most major legislation with divided support in Congress has split along party lines. This means that, even if it has passed the Senate, it would have been unlikely to win the support of the opposing party in the House—or the White House. But, in conditions of trifecta government, a filibuster in the Senate can be fatal to a bill that likely would have passed the House and received the president’s signature.

Note that, in some cases, filibustered bills were eventually passed but with substantial concessions to the senators blocking the original bill.

Bills that the Senate filibuster blocked

The bills listed below were collected primarily from the Senate’s database of cloture votes,³⁶ although some bills were identified from a database of filibusters assembled by political scientist Gregory Koger³⁷ or media sources. Each bill is followed by a brief description intended to provide a sense of the bill’s contents, but by no means should these be considered comprehensive summaries. The list reflects to the following periods of trifecta government: 1993–1995, 2003–2006, 2009–2010, and 2017–2018 (the 103rd, 108th, 109th, 111th, and 115th congresses). It is organized into periods of trifecta Republican control and periods of trifecta Democratic control.

Note that this list of filibustered bills includes major progressive priorities, such as efforts to strengthen labor unions, protect the environment, create high-paying jobs, reduce pay discrimination, improve campaign and lobbying disclosures, and provide a pathway to citizenship for Dreamers. It also includes major conservative priorities, such as eliminating access to reproductive health care, limiting access to public benefits, reducing taxes for the very wealthy, and limiting the ability of consumers to sue corporations.

While this report focuses on the impact of the filibuster, it is important to note that nonlegislative means have been used to advance many conservative priorities. These efforts have been aided by an increasing number of far-right judges who have been put on the bench in recent years. While any discussion of the filibuster must be clear-eyed as to how both conservatives and progressives have used this procedural tool, it is equally important to consider the judicial branch’s role in shaping national policy by ruling on state and federal legislation that is brought before federal courts.

108th Congress (2003–2004): Bush administration, Republican trifecta

• S.1751—Class Action Fairness Act of 2003 (10/22/2003; vote: 59–39³⁸). This bill would have made it much harder to bring successful class action lawsuits. It easily passed the House³⁹ and fell one vote short of overcoming a Senate filibuster.
• H.R.6—Energy Policy Act (11/21/2003; vote: 57–40⁴⁰). This 2003 energy bill was filibustered because of a provision that would have protected companies from liability for producing and distributing MTBE, a gasoline additive that can contaminate drinking water. Oil companies have since paid hundreds of millions of dollars in settlements to clean up water contamination.⁴¹
• H.R.4—PRIDE Act (“Welfare reform”⁴²) (4/1/2004; vote: 51–47⁴³). This bill would have placed substantial restrictions on the Temporary Assistance for Needy Families (TANF) program.

109th (2005-2006): Bush administration, Republican trifecta

• H.R.3199—USA PATRIOT Improvement and Reauthorization Act of 2005 (12/16/2005; vote: 52–47⁴⁴). Although the Patriot Act was eventually reauthorized in 2006, one day before it was due to expire,⁴⁵ the final version of the bill contained several new protections for civil liberties—concessions that were won due to a filibuster of the 2005 version of the bill.⁴⁶
• H.R.2863—Department of Defense Appropriations Bill (funding for drilling in the Artic National Wildlife Refuge) (12/21/2005; vote: 56–44⁴⁷). Republican leaders in the Senate attempted to pass a measure to allow oil drilling in the Arctic National Wildlife Refuge (ANWR) by making it a part of “a popular defense spending bill [to pay] for the war in Iraq and Hurricane Katrina relief.”⁴⁸ Though they received the support of four Democratic senators, the bill failed to overcome a Senate filibuster and was eventually passed with the ANWR drilling provision removed.⁴⁹
• H.R.8—Death Tax Repeal Permanency Act of 2005 (6/8/2006; vote: 57–41⁵⁰). This bill would have permanently repealed the estate tax.
• H.R.5970—Estate Tax Reduction and Extension of Tax Relief Act of 2006 (8/3/2006; vote: 56–42⁵¹). This bill would have significantly weakened and reduced the estate tax.
• S.403—Child Interstate Abortion Notification Act (9/29/2006; vote: 57–42⁵²). This bill would have applied parental consent laws across state lines by making it a criminal offense to transport a minor to another state for an abortion without providing notice to the parent (and requires out-of-state doctors to give 24-hours’ notice to parents of such minors).

115th (2017-2018): Trump administration, Republican trifecta

• S.2311—Pain-Capable Unborn Child Protection Act (1/29/2018; vote: 51–46⁵³). This bill would have made it illegal to perform an abortion after 20 weeks of pregnancy.

103rd Congress (1993–1995): Clinton administration, Democratic trifecta

• H.R.1335—Emergency Supplemental Appropriations Act (“Economic stimulus bill”⁵⁴) (4/2/1993; vote: 55–43⁵⁵). At President Bill Clinton’s urging, the Senate attempted to pass an appropriations bill that contained billions of dollars for programs intended to create jobs and provide benefits for the unemployed. The bill was drastically scaled down after a Republican filibuster, joined by one Democrat, Sen. Richard Shelby (D-AL), who switched party affiliation and became a Republican the following year.⁵⁶
• S.55—A bill to amend the National Labor Relations Act and the Railway Labor Act to prevent discrimination based on participation in labor disputes (7/13/1994; vote: 53–46⁵⁷). This bill would have made it illegal for an employer to threaten or take steps to replace an employee who exercised collective bargaining rights.
• S.3—Campaign Spending Limit and Election Reform Act (9/27/1994; vote: 57–43⁵⁸). This bill would have created a voluntary partial public-financing system for federal campaigns.⁵⁹ Although the bill was substantially weakened to pass the House of Representatives, it ultimately failed to move forward due to a filibuster in the Senate.⁶⁰
• S.349—Lobbying Disclosure Act (LDA) (10/7/1994; vote: 55–42⁶¹). The LDA tightened weak and outdated rules requiring lobbyists to register and disclose their clients and lobbying activity. In 1994, the bill was “all but killed” by a Republican-led filibuster, joined by eight Democrats.⁶² However, after persistent campaigning and threats by LDA supporters to filibuster other bills, the LDA finally passed more than a year later.⁶³

111th Congress (2009-2010): Obama administration, Democratic trifecta

• H.R. 4173—Dodd-Frank Wall Street Reform and Consumer Protection Act (Senate version of the bill, S.3217,⁶⁴ was filibustered three times—4/26/2010, vote: 57–41⁶⁵; 4/27/2010, vote: 57–41⁶⁶; 4/28/2010, vote: 56–42⁶⁷). Although the final Dodd-Frank bill imposed new, far-reaching financial regulations, it also contained some compromises. Democrats were one short of the 60 votes they needed to pass a bill along party lines, and therefore made some significant concessions in order to win Republican votes in the Senate—perhaps most notably, a weakening of the Volcker Rule, which aimed to separate the banking system from the hedge funds, private equity funds, and proprietary trading activities that take bets on the ups and downs of the market.⁶⁸
• S.3628—Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE Act) (Twice filibustered: 7/27/2010; vote: 57–41⁶⁹; 9/23/2010; vote: 59–39⁷⁰). The DISCLOSE Act sought to substantially increase disclosure requirements for money spent to influence elections, including payments for election-related advertisements run by nonprofit organizations. It was blocked twice, coming within one vote of overcoming the second filibuster.
• S.3816—Creating American Jobs and Ending Offshoring Act (9/28/2010; vote: 53–45⁷¹). This bill would have given tax breaks to businesses that returned jobs from overseas to the United States and eliminated tax benefits for companies that moved jobs overseas.
• S.3772—Paycheck Fairness Act (11/17/2010; vote: 58–41⁷²). This bill would have made it easier for women to raise discrimination claims against their employer if they were paid inequitable wages. It would also have increased penalties and strengthened protections against retaliation for employees that raised complaints. The bill was filibustered again in 2012, when it received 52 votes.⁷³
• Effort to extend Bush administration tax cuts for middle-class Americans only (Included in two separate amendments, both filibustered: 12/4/2010, vote: 53–36⁷⁴; 12/4/2010; 53–37⁷⁵). Senate Democrats attempted to pass two amendments to this 2010 bill. The first would have extended tax cuts passed during the Bush administration but only to couples making under $250,000 and unmarried individuals making under $200,000. The second would have extended tax cuts only for people making no more than $1 million.⁷⁶ Both were filibustered, and the Obama administration later made a deal with Republicans to extend all of the tax cuts for two years along with a payroll tax holiday and an extension of enhanced unemployment benefits.⁷⁷
• S.3985—Emergency Senior Citizens Relief Act of 2010 (12/8/2010; vote: 53–45⁷⁸). This bill would have extended, through 2011, 2009 stimulus bill benefits to recipients of Social Security, Supplemental Security Income, railroad retirement benefits, and veterans disability compensation or pension benefits, as well as a tax credit for government retirees. The bill was intended, in part, to make up for the fact that, due to congressional inaction, recipients of Social Security had not received the usual cost of living adjustment in 2011.⁷⁹
• S.3991—Public Safety Employer-Employee Cooperation Act of 2010 (12/8/2010; vote: 55–43⁸⁰). This bill would have allowed public safety officers—for example, police and firefighters employed by state and local governments—the right to collectively bargain and form a union.
• The Development, Relief, and Education for Alien Minors Act (DREAM Act) (Filibustered twice: 9/21/2010; vote: 56–43⁸¹; 12/18/2010; vote: 55–41⁸²). The DREAM Act would have provided a path to citizenship for undocumented immigrants who arrived in the United States before their 16th birthday, provided that they attended college or served in the military. It was first filibustered as a part of a defense appropriation bill and then as an amendment to the Removal Clarification Act that had already passed the House during a lame-duck session of Congress.⁸³ Notably, the DREAM Act was also filibustered in 2007,⁸⁴ and although then-President George Bush was a Republican who mostly opposed legislation from the Democratic 110th Congress, he supported a path to legal status for current immigrants as part of comprehensive immigration reform.⁸⁵

Examples of issues that were not raised because of the near certainty of a filibuster

Importantly, the list above does not fully account for the filibuster’s impact. Many proposals that might otherwise have received consideration were never brought up for a vote—perhaps never even introduced—because of an understanding that they would be unable to overcome the filibuster’s 60-vote threshold. The inaction that results from anticipated filibusters is almost certainly more consequential than the inaction that results from actual filibusters.

Consider, for example, the three policy areas below. For each of these topics, the threat of a filibuster prevented legislation from moving forward. Note that, in some cases, actions can be taken in these areas via the budget reconciliation process—discussed further below—thus avoiding a filibuster. But these case studies show how the filibuster can prevent issues from even coming to a vote.

Climate change

During the Obama administration, Congress attempted to enact a major bill to address climate change. The House of Representatives passed the American Clean Energy and Security Act, which would have set new renewable fuel standards and established a cap-and-trade system for reducing greenhouse gas emissions.⁸⁶ However, the proposal was never brought to a vote in the Senate. Then-Senate Majority Leader Harry Reid explained why:

It’s easy to count to 60. I could do it by the time I was in eighth grade. My point is this, we know where we are. We know we don’t have the votes [for a bill capping emissions].⁸⁷

Democratic Sen. Barbara Boxer, then chair of the Environment and Public Works Committee, made the same point more succinctly: “We don’t have the 60 votes.”⁸⁸ There was also some concern about the bill among moderate Democrats—and therefore some controversy about who to blame for the bill’s demise⁸⁹—but it is clear that “dropping that threshold to 51 would have completely changed the political dynamics and greatly enhanced the probability of victory.”⁹⁰ In the words of climate change journalist David Roberts, “Why did cap-and-trade fail? Because of filibuster abuse. That’s the simplest and most directly causal answer.”⁹¹

Since the failure of the cap-and-trade bill, no other significant piece of climate change legislation has received consideration in Congress.

Public option for healthcare

One of the signature accomplishments of the Obama administration was the narrow passage of the Affordable Care Act,⁹² better known as Obamacare, which has provided health insurance to an additional 20 million Americans.⁹³ Initially, however, the bill had been even more ambitious, including a government-run health plan similar to Medicare that would have been available to people who purchase insurance on the individual market. This proposed “public option” was a high priority for some elected Democrats. Ezra Klein wrote that it was, “for many Democrats, their absolute top priority during the health-care reform debate.”⁹⁴ Moreover, “[p]oll after poll showed it to be one of the more popular elements of health-care reform.”⁹⁵

Although there was reluctance among Democrats on the Senate Finance Committee, where the chair, Democratic Sen. Max Baucus, stated that he didn’t believe there were 60 votes in favor of a public option,⁹⁶ Democratic Sen. Tom Harkin, the chairman of the Health, Education, Labor and Pensions Committee, said that “there are, comfortably, 51 votes for a public option.”⁹⁷

In October of 2009, Sen. Joseph Lieberman announced that he would oppose a bill containing a public option, which meant that there were not 60 votes to overcome a filibuster in the Senate. ⁹⁸ The public option was never actually filibustered, because Senate Democrats opted to instead drop it from the bill in order to move forward on a compromise proposal.⁹⁹

Gun violence prevention

In 2013, a period of divided government, there was a brief moment where it looked like the Senate might have been able to pass a bipartisan bill to expand background checks for gun purchases in the wake of a mass shooting at Sandy Hook Elementary School.¹⁰⁰ The proposal ultimately failed to overcome a filibuster by a vote of 54–46.¹⁰¹ It seems unlikely, in any case, that the proposal would have been approved by the Republican-controlled House, where Speaker John Boehner declined to say whether he would allow it to come to a vote.¹⁰² In 2015, following another mass shooting in San Bernardino, the measure was again considered by Senate and again failed, with no senators changing their prior positions.¹⁰³

Discussion of the proposal resurfaced in 2019, after the House passed its own bipartisan legislation to expand background checks.¹⁰⁴ However, it soon became clear that there would not be enough votes in the Senate; Republican Sen. Pat Toomey said he would need to “win over” more senators and get close to 60 votes to be comfortable bringing it up for a vote.¹⁰⁵ The proposal has not received a vote. Gun safety legislation has been supported by a majority in both chambers at various times but never a filibuster-proof supermajority in the Senate.

Americans overwhelmingly support universal background checks, regardless of political party. Moreover, 64 percent of Americans support stricter gun laws in general,¹⁰⁶ which would translate to a filibuster-proof supermajority if all Americans were equally represented in the Senate. And yet, Congress has not passed a significant gun violence prevention bill since the early 1990s, when Congress passed a temporary ban on assault weapons; measures to prevent some domestic abusers from possessing guns; and the Brady Handgun Violence Prevention Act, which required background checks for some gun purchases.¹⁰⁷ In fact, the only significant gun-related legislation that passed during the past 25 years was to protect gun retailers and manufacturers from liability.¹⁰⁸

Not all legislative action is equally subjected to the filibuster. Legislators have gradually introduced procedural maneuvers that allow an end-run around the filibuster in specific circumstances.

For example, all executive branch nominations are now exempt from the filibuster. In 2013, frustrated with obstruction of President Barack Obama’s nominees, then-Senate Majority Leader Reid changed the rules to allow nominees, including judges, to be confirmed by majority vote—with the exception of Supreme Court nominations.¹⁰⁹ Then, in 2017, Senate Majority Leader Mitch McConnell, who had opposed changes to the filibuster under Reid, eliminated the filibuster for Supreme Court justices in order to confirm Neil Gorsuch, after having held open the seat by refusing to even consider President Obama’s nominee, Merrick Garland.¹¹⁰ Gorsuch was confirmed on a 54–45 vote.¹¹¹

Procedural maneuvers have also cleared the way for some legislation to avoid filibusters. Most significantly, budget bills can pass through a process known as budget reconciliation.¹¹² Under reconciliation, the Senate uses a fast-track process to consider legislation that brings spending and revenue in line with the budget resolution. This process allows such legislation to be passed by majority vote. Under 1985 reforms, nongermane provisions—for which the revenue or spending impact is secondary—cannot be included.

Since its first use in 1980, reconciliation has been utilized to pass 21 laws (in four instances, reconciliation acts were vetoed).¹¹³ In most instances, these reconciliation packages have made changes to nondefense spending programs—most often to reduce spending—affecting a wide range of programs, including, Medicare, Medicaid, Social Security, and student loan programs. The reconciliation bills with the greatest impact, measured in terms of changes to the budgetary bottom line, have been massive tax cuts, whose largest beneficiaries have been the wealthiest Americans. Most notably, tax cuts passed in 2001, during the Bush administration, reduced the projected surplus over the next 10 years by over $1.3 trillion.¹¹⁴ The Tax Cuts and Jobs Act, signed by President Donald Trump in 2017, is projected to have an even larger fiscal impact, adding roughly $1.5 trillion to the deficit by 2027.¹¹⁵ Other notable examples of legislation passed through reconciliation include: President Ronald Reagan’s tax cuts and cuts to social safety net programs; President Clinton’s budget as well as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996; and modifications of the Affordable Care Act, prior to its passage, under President Obama.

Another fast-track procedure was created by the 1996 Congressional Review Act (CRA), which allows Congress to overturn recently promulgated regulations. Prior to the Trump administration, the law had only been used to overturn a Clinton-era Department of Labor rule related to worker safety. During the Trump administration, however, the CRA was used to strike down 16 Obama-era rules, including rules limiting toxic pollution in drinking water; improving working conditions for employees of government contractors; creating internet privacy protections for consumers; preventing states from limiting family planning funding to institutions that provide abortions; and prohibiting forced arbitration in a range of contexts.

There are other, more minor fast-track procedures in the Senate; for example, certain trade deals are considered on an expedited basis, as are recommendations to close military bases. Generally, however, the most significant end-runs around the filibuster are reconciliation, the CRA, and the exemption for judicial nominees. Though these processes have allowed for some significant Senate action, the lion’s share of legislation still must cross the filibuster’s 60-vote threshold.

On the whole, the filibuster has been used roughly twice as much by Senate Republicans to prevent Democratic legislation from passing than Senate Democrats have used it to prevent Republican legislation. It is also important to note that a number of the conservative Senate majority’s current priorities, including the confirmation of judges and cutting taxes for the wealthiest Americans, are not subject to the filibuster, meaning that a larger part of their agenda can be accomplished on a majority-vote basis. And, in the last Congress, congressional Republicans attempted to utilize fast-track procedures in their failed effort to repeal the Affordable Care Act, so as to avoid a filibuster in the Senate.

The filibuster has also been used to prevent significant conservative priorities, including efforts to undermine reproductive rights.¹¹⁶ Should elected officials decide to modify the filibuster, they must be firmly committed to upholding hard-won legal rights of critical importance, such as reproductive rights, and taking concrete steps to prevent their erosion.

In addition, it is important to keep in mind that because the full impact of the filibuster is difficult to measure, this report cannot describe the entire range of progressive or conservative proposals that might have been enacted into law by majority vote.

Nonetheless, it is clear that the filibuster has had a substantial effect on the legislative landscape. It shapes what lawmakers of both parties view as possible and constrains the types of legislation that are brought to the floor for consideration—let alone passed. Moreover, over time, the filibuster has provided senators representing a smaller and smaller segment of the population the ability to stop legislation from moving forward—trends that seem likely to continue, and even accelerate, in the coming years.

Sam Berger is the vice president for Democracy and Government Reform at the Center for American Progress.

Alex Tausanovitch is the director of Campaign Finance and Electoral Reform at the Center.

Thanks to Hailey Becker, Vaibhav Vijay, and Carlie Malone for excellent research assistance; to Kai Chen for assistance with source material; and to Ben Olinsky and Maggie Jo Buchanan for their insightful thoughts throughout this process.