Everything You Didn't (Want to) Know About the Filibuster

As we approach the 2024 elections, health care remains a hot-button issue. But before any significant health care reform can become law, it must navigate the complex procedures of the US Senate. Today, we're diving into one of the Senate's most controversial tools: the filibuster. Understanding this parliamentary procedure is crucial for grasping why some ambitious health care proposals struggle to become reality.

How a Bill Becomes a Law (Senate Edition)

When a bill is introduced in the Senate, it's referred to the appropriate committee for discussion, hearings, and potential amendments. If a majority of the committee votes in favor, the bill moves to the Senate floor for debate.

Here's where it gets tricky. While it takes just 51 votes to pass a bill after a debate has ended, it requires 60 votes to end that debate. This 60-vote threshold, known as ‘cloture,’ has become the de facto requirement for passing most legislation in the Senate. It's a much higher bar than the simple majority needed in the House of Representatives.¹

Enter: the filibuster. This is a tactic used to extend debate indefinitely, effectively blocking a vote on legislation. Its roots trace back to an 1806 rule change that inadvertently created the possibility of unlimited debate.¹

Interestingly, not everything is subject to the filibuster. Executive branch nominations, including Cabinet positions, can be confirmed with a simple majority of 51 votes. In 2017, Senate Republicans, under Mitch McConnell's leadership, took this a step further. They used the “nuclear option” to eliminate the filibuster for Supreme Court nominations, allowing them to confirm Neil Gorsuch to the Supreme Court with a simple majority vote.²

Some legislation, like the annual budget reconciliation bill, also only requires a simple majority. This exception explains why we often see various health care provisions shoehorned into these massive budget bills—it’s one of the few ways to bypass the filibuster.³

More Threat Than Action

While dramatic "talking filibusters" of the past are rare today, they do still occur. More commonly now, the threat of a filibuster is often enough to stall legislation. It can force the majority party to revise provisions or abandon legislation altogether if they can't secure 60 votes. This dynamic has led to criticism that the filibuster gives too much power to the minority party, allowing them to obstruct the will of the majority.

The filibuster's impact on health care legislation has been significant. Major reform proposals like "Medicare for All" or a public option for health insurance face an uphill battle not just in gaining majority support, but in clearing the 60-vote hurdle to overcome a potential filibuster.

Calls for Reform

As frustration with legislative gridlock grows, so do calls for filibuster reform. Vice President Kamala Harris has recently suggested creating a carve-out to the filibuster specifically for codifying abortion rights in the wake of the Supreme Court's Dobbs decision while others advocate for eliminating the filibuster entirely.⁴

Changing the filibuster rules isn't simple. It would require at least 51 votes (or 50 plus the Vice President as a tiebreaker) to modify Senate procedures. This means any reform effort needs near-unanimous support from the majority party, as the minority party is unlikely to support changes that reduce their power.

The 2024 Election: A Turning Point?

The upcoming elections could reshape the filibuster debate. If either party gains a significant majority in the Senate, they may feel emboldened to push for rule changes. However, some senators are hesitant to eliminate a tool they might want to use when they find themselves in the minority.

Although we won’t know the official results until November, it appears that Republicans are favored to win the majority in the Senate. There’s only one true toss-up seat (Ohio), with Republicans projected to hold 51 seats and Democrats (including independents who caucus with them) holding 48 seats. This potential shift in power could significantly impact the filibuster debate and health care legislation in the coming years.⁵

Health Care in a Post-Filibuster World

If the filibuster were eliminated or significantly reformed, it could dramatically accelerate the legislative process for health care initiatives. Bills like the Inflation Reduction Act, which included provisions for Medicare drug price negotiations, could potentially be expanded more easily. Comprehensive health care reform proposals that have stalled in recent years might find new life.

However, it's crucial to remember that removing the filibuster cuts both ways. While it might allow for faster implementation of progressive health care policies under a Democratic majority, it could also enable quick reversals or opposing policies when control of the Senate changes hands.

The filibuster remains a powerful force in shaping US health care policy. Whether it continues in its current form or faces significant changes, it could have far-reaching implications for the future of American health care.

Join me every Wednesday as I highlight key court decisions, review notable health policies, and analyze what’s behind the bill in health care.

References

1. Binder S. The history of the filibuster. Brookings. Published June 14, 2010. Accessed September 30, 2024. https://www.brookings.edu/articles/the-history-of-the-filibuster/

2. Kane P. Reid, Democrats trigger 'nuclear' option; eliminate most filibusters on nominees. Washington Post. Published November 21, 2013. Accessed September 30, 2024. https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html

3. Flegenheimer M. Senate republicans deploy 'nuclear option' to clear path for Gorsuch. The New York Times. Published April 6, 2017. Accessed September 30, 2024. https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html

4. Seitz-Wald A. Harris's call for filibuster reform gets pushback from Democrats. The Hill. Published September 26, 2024. Accessed September 30, 2024. https://thehill.com/policy/health care/4899774-filibuster-reform-democrats-alarm/

5. 2024 Senate Election Interactive Map. 270toWin. Accessed September 30, 2024. https://www.270towin.com/2024-senate-election/