For years, California’s late Sen. Dianne Feinstein fought off calls by her fellow Democrats to get rid of the filibuster, a Senate rule used to great effect by Republicans thwarting Democrats’ key legislation.
A traditionalist who served in Congress in the days when the two parties often worked toward compromises, Feinstein knew that when Democrats were in the Senate minority, they would need that option, too.
Two years after Feinstein’s death, that time has come. And now, Senate Democrats who had pushed vociferously for the filibuster’s elimination just four years ago are using it to try to force a Republican compromise on President Donald Trump’s “Big Beautiful Bill” that would cause health insurance costs for many Americans to skyrocket.
And, surprise, surprise, several Republican senators, frustrated that the Democrats continue to hold up their legislation a month into a federal government shutdown, are now suggesting it’s time for the filibuster to go. Trump gave them a nudge on his social media Thursday evening to “INITIATE THE “NUCLEAR OPTION,” GET RID OF THE FILIBUSTER AND, MAKE AMERICA GREAT AGAIN!”
“To quote Nelson Mandela, ‘where you stand depends on where you sit,’” said Brown University Political Science Professor Richard Arenberg. “That often becomes true with the filibuster. There are few senators who don’t, at some point or another, come down on both sides of the issue.”
The filibuster is a Senate procedure that allows the minority party to block legislation from a final vote — often by significantly prolonging debate — unless the majority can muster a supermajority of 60 votes required to end debate. To prevent or end a filibuster, the majority party, in theory, would be motivated to negotiate an agreement or pull the bill.
But times, and temperament, have changed. With a 53-47 split between Republicans and Democrats in the Senate, getting 60 senators to agree on anything has become practically impossible. What had once been a tool used in only the most controversial cases has now effectively set a 60-vote supermajority for passage of any Senate legislation.
“Now, the minority will tend to obstruct everything the majority wants to do because they just disagree so much,” said Political Science Professor Eric Schickler, co-director of UC Berkeley’s Institute of Governmental Studies. “There’s just a basic mismatch between the filibuster and today’s hyper-polarized politics.”
California Sen. Alex Padilla was serving his first term when he voted with his fellow Democrats in 2022 — unsuccessfully — to abolish it. At the time, Republicans were filibustering Democratic legislation to strengthen voting rights. Padilla said that voting rights and perhaps other significant Democratic issues, including climate change and health care legislation, would be worth ending the filibuster.
“It’s not about Democrats, it’s not about Republicans,” Padilla told CNN at the time. “It’s about our democracy.”
Now, extending subsidies to help Americans pay their Obamacare premiums is keeping the filibuster alive for the Democrats.
Neither Padilla nor fellow California Sen. Adam Schiff, who replaced Feinstein after her death and vowed as a candidate to end the filibuster, responded to repeated emails about their filibuster positions. Instead, the two have been sending out joint press releases excoriating Republicans for their “cruelty” in making health care unaffordable for millions of Americans.
“The way out of a shutdown is for the President and Republican leaders to finally negotiate with Democrats in good faith to immediately reopen the government and protect Americans’ health care,” Padilla said in a statement.
Over recent years, Senate Republicans have used the filibuster repeatedly, including in 2010 to halt the Dream Act that would have created a pathway to citizenship for immigrants who arrived in the U.S. as children, and in 2013, after the Sandy Hook school shooting, to stop gun control measures that would have expanded background checks.
In the midst of the government shutdown this week, however, several Republican senators are changing their stance. Josh Hawley of Missouri told reporters that “all options are on the table.”
When his constituents ask him why he’s “not doing anything” to reopen government, he said he has a difficult time answering.
“What am I going to say?” Hawley said. “‘Oh, well, there’s this rule in the Senate, you can’t feed your kids, but we have to protect the filibuster?’”
Feinstein was often at odds with her fellow Democrats over repealing the filibuster, but she wasn’t a purist. Twice she voted to modify it.
In 2013, she reluctantly supported a reform that allowed judicial appointments to pass with a simple majority, rather than 60 votes, but “drew the line in the sand” about Supreme Court appointees.
That vote turned into a “slippery slope,” Arenberg said.
In 2017, Republicans, who flipped the Senate when Trump came into office, crossed that line. Supreme Court nominees now need only a majority vote to send them to the highest court.
Now, “presidents are free, as long as they have a majority in the Senate, to nominate as extreme a judge as they want,” Arenberg said. “The effect of changing the interpretation of the rule has been a political polarization and politicization of the federal courts.”
In 2021, Feinstein voted along with Padilla and other Democrats to support a “carve-out” of the filibuster to allow Democrats’ voting rights legislation. Without the support of Democratic Sens. Kyrsten Sinema and Joe Manchin, who called the filibuster the “holy grail of Democracy,” the effort failed.
“It’s fair to say that when it comes to the filibuster, both parties have been hypocritical in the sense that when they’re in the minority, they use the tool aggressively and defend it as a key part of the Senate’s character,” Schickler from UC Berkeley said.
At the same time, “there’s an element of Kabuki theater with the filibuster, where there’s a strong incentive to try to find a way around it,” he said. But compromise seems more elusive now. “The filibuster still exists, still creates a lot of inconvenience and challenges but it doesn’t serve the purpose it used to serve.”
What happens next as the shutdown enters into its second month and federal workers miss paychecks and poor families are cut off from food stamps remains to be seen. Will the Republicans negotiate? Will the filibuster end?
Political Science Professor Jack Pitney from Claremont McKenna College isn’t certain.
“My guess is they will find a way to resolve the current situation without nuking the filibuster,” he said. However, he added, “I could be wrong on that.”