The Jan. 6 case for ending the Senate filibuster

With the Senate’s acquittal of President Trump after his second impeachment trial, the question of accountability for his unmistakeable role in inciting a violent insurrection on Jan. 6 looms large. 

There are basically two options left on the table. The first was mentioned by Trump’s defense lawyers as an alternative to an impeachment conviction: a criminal investigation and indictment through the executive branch of the federal government or a state or local government, with a possible trial in the judicial branch. 

The second is to squeak out some accountability through the U.S. Congress. Some have called for a sanction under Section 3 of the 14th Amendment. But more important for the rule of law and the Constitution going forward would be a slate of new legislation — post-Watergate style — aimed at plugging the many holes in the separation of powers that Trump exploited. 

But that would likely require a controversial preliminary step: an end to the Senate filibuster as it now operates.

Under current parliamentary rules in the Senate, senators from the minority party can prevent a legislative measure from being brought to a vote by extending debate indefinitely — a maneuver known as the filibuster, which dates back to the early 1800s. By the 1970s, extended debate was no longer required to filibuster a bill. The mere threat of extended debate has since sufficed. In order to end debate and force a vote, a senator will typically ask for “unanimous consent” of all 100 senators, essentially inviting any objections to moving to a vote. If no objection is heard, the filibuster ends. If there is no unanimous consent, three-fifths — or 60 — senators must invoke what’s known as “cloture” under Senate rules. As a practical matter, what this means is that the standard majority vote threshold can readily morph to a 60-vote threshold, empowering the minority to block legislation with little personal or political consequence. 

As University of Baltimore School of Law Dean Ron Weich has explained, the benefits of the filibuster rule are “to require a larger, typically bipartisan group of senators to agree that a bill or nomination should move forward in the legislative process,” and thus to “protect[] the rights of the Senate minority and the citizens they represent.” This is especially important given the structurally anti-democratic nature of the Senate. States with large populations get the same number of representatives as states with much smaller populations: two. As a result, Senate business can be firmly controlled by members who represent a minority of the population as a whole. The filibuster allows more populated states — and indeed, maybe even a majority of Americans, irrespective of political party — to have a say in legislation under those circumstances.

This is all well and good when Congress functions as a cooperative, deliberative body that works on compromise. But for now, those days are in the rear-view mirror. The filibuster was killed for confirmation of lower federal judges and executive branch nominees in 2013 when former Sen. Harry Reid (D-Nev.) was Senate majority leader. Under his replacement, Sen. Mitch McConnell (R-Ky.), the Senate got rid of it for Supreme Court nominees too. As a result, three conservatives now on the court — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were put in consequential jobs for life without meaningful representation in the Senate for the millions of Americans who identify as Democrats, or at least want to see more ideological balance on the high court.

Unlike the composition of the Supreme Court bench, controversial legislation can be altered when the Senate majority shifts to a different party following an election. Arguably, therefore, moving passage of legislation to a simple majority vote without the threat of a filibuster would be less damaging to the separation of powers than its dissolution under McConnell’s watch — a maneuver that entrenched conservatism on the federal bench for generations.

The 60-vote cloture rule is contained in Senate Rule 22. Formally changing it would require a two-thirds majority of the Senate. The alternative — employed by both Reid and McConnell — is what’s known as the “nuclear option,” which employs a parliamentary procedure for creating new “precedent” for a 51-vote majority for new legislation — as opposed to a revised rule. If unified, Senate Democrats can thus eradicate the filibuster to pass Biden’s agenda on a simple majority, with Vice President Harris as the deciding vote.

If Democrats want to enact greater transparency and accountability rules for the executive branch to avoid future Trump-like abuses in the Oval Office, an end run around the 60-vote cloture rule might be their only option.

What would a Watergate-like package of transparency and accountability reforms include?

Congress has already introduced legislation known as “For the People Act” in both the House (H.R. 1) and Senate (S.1), which would stave off the confusion and misinformation that culminated in the Jan. 6 carnage. The bill includes national automatic voter registration, restoration of a key portion of the Voting Rights Act that was gutted by the Supreme Court in 2013, an answer to partisan gerrymandering, reform of campaign finance laws and revised federal ethics rules.

Congress could also pass legislation to clarify the guardrails of independence for prosecutors charged with investigating sitting presidents, much like it did in the Ethics in Government Act of 1978, which gave rise to the investigation of President Bill Clinton by Independent Counsel Kenneth Starr. That statute ultimately lapsed. There were flaws in the law, to be sure, but the Supreme Court upheld its basic constitutionality in Morrison v. Olson. Congress should include in any ne legislation rules around possible presidential indictments, which are currently banned by internal Department of Justice (DOJ) policy guidance — not a law. 

Moreover, Congress should revisit the Electoral Count Act of 1887, an arcane and ambiguous law that prompted much mischief in 2020 — including a threat that State legislatures could ignore the popular vote and legislate a slate of electors for Trump within a “safe harbor” deadline under the statute. The act also sets forth the procedures governing congressional objections to state certifications of Electoral College votes on Jan. 6. The law should be amended to foreclose abject political objections made without factual or legal justification — like those promoting the “big lie” that millions of Americans were duped into believing in 2020.

There are many more needs out there — including additional rules mandating transparency in the Oval Office and protections for inspectors general from political retaliation. Now is the window to act to save democracy for our children and grandchildren. If it requires a 51-vote majority rule to do it, Congress must — at the very least — consider taking that step.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” “What You Need to Know About Voting — and Why,” and the forthcoming “How to Think Like a Lawyer–and Why.” Follow her on Twitter and Instagram @kimwehle.