Biden Has More Power Over the Filibuster Than He’s Been Willing to Use

The president has a historical model he can follow to try to save his agenda from the Senate.

A photo illustration of a fist punching a speech bubble
Getty; The Atlantic

About the author: David Litt is a former speechwriter for President Barack Obama. He is a best-selling author and the publisher of the newsletter How Democracy Lives.

A majority of Democrats oppose the Senate filibuster—and it’s still not entirely clear whether President Joe Biden is among them. In March, when asked whether he would call for changes to the Senate’s 60-vote threshold for legislation, Biden replied, “The only thing I’ve been relatively good at in my long career in the Senate is figuring out when to move and when not to move. You’ve got to have the votes.”

Six months later, Biden may or may not have the votes. And now it is time to move. As the Senate parliamentarian has made clear, many of the largest parts of the Biden agenda, including comprehensive immigration reform and gun-safety legislation, will never pass so long as the Senate’s 60-vote threshold remains in place. Neither will the Freedom to Vote Act, Congress’s last hope to expand voting rights and protect free elections. In a best-case scenario, the filibuster will render Democrats unable to deliver on their campaign promises, despite controlling both houses of Congress and the White House. In a worst-case scenario, the filibuster will doom democracy itself.

Senators, an ornery bunch, don’t like the White House telling them how to run the chamber. But this White House no longer has a choice. Biden’s decision on whether and how to involve himself in the fight over the Senate’s rules will likely define his presidency.

Fortunately, Biden is not the first chief executive to face this challenge. More than a century ago, a president publicly attacked the filibuster as an existential threat, not just to his agenda but to the country. The circumstances that led to his decision, and the consequences that followed, carry lessons for reformers today—and suggest that Biden might be wise to make a big, public case against the filibuster now.

The first filibuster was launched in 1837, and it bore little resemblance to what’s employed by Mitch McConnell and his fellow Republicans today. Obstructionist senators had to be physically present in the chamber. If they lost control of the floor, their filibuster was done. So long as the floor was held, there was no way for a supermajority of senators to force a vote on a bill. While a single lawmaker might struggle to sustain a filibuster, a handful of lawmakers could round-robin speaking privileges indefinitely, holding up nearly any piece of legislation for nearly any length of time.

From the filibuster’s earliest days, some senators tried to eliminate it. (The most notable of these was Henry Clay, “the Great Compromiser,” who apparently did not think that the filibuster was conducive to great compromise.) But because any attempt to reform the filibuster could itself be filibustered, the would-be reformers learned to live with it instead.

This proved to be easier than some 19th-century senators might have predicted. Lawmakers invented the “unanimous-consent agreement,” which made filibustering less likely. In those days, the Capitol had no air-conditioning and was lit with stinky, beef-tallow candles, providing a strong incentive for obstructionists to surrender the floor. Most of all, the 19th-century Senate had far less to do. In 1837, the Senate took a break from March 10 to September 4, another break from October 16 to December 4, remained in session until July 1838, and then once again adjourned until December. With so few items on the agenda, filibusterers could frequently waste weeks, or even months, without much consequence. While their obstruction might shorten a recess, there would still be time to spare for top legislative priorities.

Following the Civil War, however, America’s lawmakers got much busier. The federal government took on more responsibilities. The country’s global reach expanded. And, thanks in part to new technologies, the world began moving faster.

Then, in 1917, a 19th-century Senate collided with a 20th-century world. German submarines had been sinking American merchant ships trading with Britain, and President Woodrow Wilson asked Congress to arm those ships to ward off future attacks. The House easily passed Wilson’s request. But 11 senators, correctly fearing that such a move would bring America closer to entering World War I, successfully filibustered the measure.

For 80 years, presidents and lawmakers had mostly been able to bargain with, or outlast, Senate obstructionists. But this was different. The filibuster was now a life-and-death matter for American sailors and travelers. It put the country’s national security at risk. And for Wilson—the only political scientist ever elected president—the danger was even greater. The Senate’s rules threatened to turn America’s defining strength, its system of self-government, into an Achilles’ heel. The United States could be a great nation in a new century; it could be the home of the Senate filibuster. But in Wilson’s estimation, it could not be both.

Wilson could have shared these views with senators in private, and negotiated behind closed doors on a plan for reform. Instead, on March 4, 1917, just hours after being sworn in for a second term, Wilson issued a blistering public statement, which ran the following day in The New York Times.

“The Congress has been unable to either safeguard the country or to vindicate the elementary rights of its citizens,” he wrote. He then listed examples of Senate obstruction beyond the merchant-ship bill—a scuttled trade bill, a mining bill, a water-rights bill—that had left America less able to compete in the 20th century. Finally, he reached his conclusion:

A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible. The remedy? There is but one remedy. The only remedy is that the rules of the Senate be so altered that it can act.

With public opinion on his side as America prepared for war, Wilson and his allies came close to finding enough Senate votes to eliminate the filibuster altogether. In the end, they were forced to compromise: A simple majority still would not be enough to end debate. But a two-thirds majority would. A “little group of willful men” could no longer grind America to a halt.

The post-Wilson filibuster continued to hamstring the country in tragic ways: Segregationists used it to defeat anti-lynching legislation and preserve Jim Crow for nearly 50 years. But from 1917 to the 1970s, when the filibuster was reformed yet again, America greatly benefited from Wilson’s well-timed rules fight. After World War I, the United States was able to function both as a democracy and as a global power. The great domestic projects of the 20th century— Social Security and Medicare, the interstate highway system, the GI Bill—were able to move forward without the possibility that a handful of reactionaries might block them.

It is entirely possible, perhaps even likely, that the American century would not have happened without a change to the Senate’s rules.

More than 100 years after Wilson denounced the filibuster, President Biden faces a different type of challenge. Instead of a handful of willful men and women, he faces an entire party of obstructionists. At the same time, he can pass parts of his agenda—such as changing the tax code and confirming judges—with just 50 Senate votes.

But with democracy itself on the line, and with the government unable to confront pressing economic and national-security challenges such as immigration reform and climate change, the White House faces the basic choice it faced a century ago. The Senate can keep its filibuster, or the American experiment can succeed in the years ahead. It’s the same divergence of paths Wilson had to deal with, and the right move is the same as well: The rules of the Senate must be altered so that it can act.

Whether the Senate rules will change is ultimately up to the senators themselves. Biden knows as well as anybody that lawmakers bristle when the White House tells them what to do. But history demonstrates that with public opinion on his side, the president has little to lose in throwing himself into the filibuster fight—and the country has a great deal to gain.