In early April, Nebraska State Senators were unable to overcome a filibuster during debate on LB575. Known as the “Sports and Spaces Act,” LB575 aimed to ban transgender students from using restrooms or playing on sports teams that didn’t align with their assigned sex at birth.
Nebraska’s Unicameral Legislature has a storied history with the filibuster. Former Senator Ernie Chambers held the record for the longest consecutive filibuster until he was overtaken by Senator Machaela Cavanaugh, who currently represents Nebraska’s Sixth Legislative District.
In recent years, Democratic senators have increasingly supported the repeal or removal of the filibuster. Even staunch institutionalists, like President Joe Biden, who served in the Senate for more than 35 years (and supported the filibuster the entire time), switched their positions after the Supreme Court overturned Roe v. Wade. Not since 1979 has any party held at least 60 seats to break the Senate filibuster.
As national Democrats fight to get rid of the filibuster to enshrine abortion rights into law, there is a different story in some of our most conservative state legislatures. Now more than ever, as state level legislators continually attempt to (and in some circumstances, are able to) limit the rights of marginalized groups, the filibuster has become a tool to protect the rights of the minority in Nebraska.
A filibuster is any tactic used by a legislator to try and halt a bill from passing. When a legislator signals intent to filibuster a piece of legislation, the threshold for that legislation to pass typically moves from a majority (50%) vote to a supermajority (66%) vote that is required to end debate.
The Senate of the United States is defined by slim majorities, and without 60 members to defeat the filibuster, no singular party will be able to pass legislation besides things that are considered “compromises.” This sounds good in theory, but in the Senate, the filibuster has been used to achieve goals that the entire country should now consider unprincipled. The late Strom Thurmond, record-holder for the longest national filibuster, spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957 in favor of segregation.
In Nebraska, Senators have a variety of methods at their leisure to slow or halt the passage of a piece of legislation. They can file motions or amendments to pieces of legislation that soak up debate time. Senators may move to recommit a bill to the committee that it exited from, requiring a vote.
The ultimate tool that Nebraska Legislators have is to invoke the filibuster during debate on a piece of legislation. To end debate on a bill, the legislative body must vote on “cloture,” requiring a supermajority to pass. When a filibuster is invoked, even if less than a supermajority of the chamber supports the legislation, there is less debate time for the legislature to address other matters deemed important. If less than 33 Senators vote for cloture, the bill is deemed dead and unable to continue forward.
The view that the filibuster is important isn’t shared by all Nebraskans. As a matter of fact, many Senators would like to do away with it entirely. In an interview with The New York Times on Apr. 11, Nebraska Senator Steve Erdman remarked, “The minority has their voice. Once you share your opinion, we vote, and the majority rules.” To be fair, Erdman made this statement in reference to the debate over doing away with Nebraska’s split electoral vote system – but the sentiment remains ever-salient. Partisan Republicans in Nebraska want to do away with the filibuster to pass their legislative agenda.
Who can blame them?
In a state ruled by a Republican supermajority (a majority that cannot be stopped by the filibuster), Nebraska Democrats are stuck using every tactic in the book to try and block legislation they see as harmful. Often, it doesn’t work, as seen by the passage of a restrictive abortion and gender affirming care ban in early 2023. But the filibuster was able to lessen the harm of the ban, increasing the threshold from a 6-week ban to a 12-week ban when Senator Merv Riepe voted with Democrats against cloture.
In states with partisan supermajorities, though, the ruling party is given nearly carte blanche in redrawing districts, and the effects can be disastrous. Look to Wisconsin, a state where the governor is a Democrat and both legislative bodies are Republican dominated. More than half of Wisconsin voted for Democrats in the legislature, but Republicans were still able to maintain control. Through their previous supermajorities and former Wisconsin Supreme Court majority, the state was able to gerrymander itself into a source of Republican power. In instances like these, especially when the so-called majority wants to remove the rights of the minority by introducing and passing anti-trans, anti-educational and anti-people-of-color policy, the filibuster becomes an all-important tool to protect against the pitfalls of democratic absolutism.
