“The same Dems who argue to keep the filibuster ‘for when we need it’ do not use it when we need it,” posted Representative Alexandra Ocasio-Cortez. The New York Democrat’s complaint followed Senate passage of the House Republican “continuing resolution”—aided by 10 Senate Democratic caucus members who supported cloture—that kept the government open without restraining President Donald Trump’s unconstitutional attempts to impound congressional appropriations.
Her accusation of hypocrisy is widely echoed in the party but it’s misdirected. None of the 10 voted to preserve the filibuster in January 2022, when Democrats tried to suspend the filibuster rule to pass voting rights legislation. Back then, Democrats were thwarted only by conference members Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, who are no longer in the Senate. (One of the 10, Senator John Fetterman, wasn’t in the Senate at the time but is on record supporting the abolishment of the filibuster.)
Does Ocasio-Cortez’s larger point—that the filibuster is useless for Democrats because Democrats don’t use it when it counts—have merit? Still, no. The filibuster is not impotent and dormant. It’s very much alive, constraining the GOP legislative agenda every day, even if it doesn’t feel that way during Donald Trump’s tumultuous second term.
Provocative bills that have reached the Senate floor have mostly been filibustered (as Sinema pointed out during a snarky X exchange with Ocasio-Cortez this month). Two weeks ago, Senate Democrats blocked a bill that would have banned schools that receive federal funding from allowing transgender girls and women from playing on female sports teams. In January, they derailed a bill that would have put doctors performing emergency late-term abortions at risk of criminal penalties, as well as a bill that would have sanctioned International Criminal Court officials for issuing an arrest warrant to the Israeli Prime Minister. Filibustering those bills was not without political risk for Democrats, but they did so anyway.
An exception is the Laken Riley Act, which requires federal officials to detain undocumented immigrants charged—but not yet proven guilty—with violent crimes or theft. But that bill attracted the support of 12 Senate Democrats, with 35 Democrats opposed; in other words, not enough Democrats were available for a filibuster.
The most significant impact of the filibuster is on the bills that never come up for a vote.
Much of the controversy surrounding the modern application of the filibuster centers on it effectively creating a 60-vote threshold to pass any legislation since 60 is how many votes are needed to end debate with “cloture.” Instead of old-fashioned “talking filibusters” that require great endurance and subject the instigators to public scrutiny—think Mr. Smith Goes to Washington—we get “silent filibusters” that require no effort and prevent bills from reaching the floor.
Today’s GOP legislative agenda is severely constricted despite having a majority in both chambers. Congressional Republicans are mainly focused on what they can stuff into a reconciliation bill, which under Senate rules is filibuster-proof but can only include budget-related provisions. They are angling for radical cuts to Medicaid to finance huge tax cuts for the wealthy and may succeed. But we know from the Build Back Better bust of 2021 and the failed attempt to repeal the Affordable Care Act in 2017 that passing party-line reconciliation bills is harder than it looks.
If Democrats had abolished the legislative filibuster (or effectively abolished it by setting a precedent for suspension by simple majority vote), then there would be no stopping a far-right, fascistic legislative freight train. And that would have been a precursor to packing the courts, which, as I argued last month, we should be eternally grateful did not happen. While under increasing strain from Trump, our constitutional system of checks and balances is one of the last guardrails. While the filibuster is not mentioned in the Constitution, it is in line with the spirit of the Constitution, which is designed to prevent tyranny by the majority. Granted, with Trump—who has never won a popular vote and is underwater in polling averages—we have an aspiring minority tyrant. But we still need every check to avoid sliding into authoritarianism.
Filibuster opponents from the left once scoffed at the threat of an unchecked Republican trifecta. The right will be constrained by public opinion, the argument went, or they will pay a price at the next election. Such statements are heard less frequently now, as they have been supplanted by concerns that we will never have a free election again. But the Constitution’s diffusion of powers, abetted by the filibuster, ensures elections will happen on schedule in 2026 and 2028, allowing the public to bury a GOP agenda they never fully understood or supported.
Until then, the filibuster silently works daily to limit the carnage this Republican-controlled Congress can unleash. In 2021, when Democrats took the White House and both chambers of Congress, they almost scuttled the filibuster. The next time Democrats win a trifecta, I suspect their memories of the Trump trifecta will be long enough that they won’t again flirt with such danger.
