The primary purpose of government is governance. The Senate filibuster precludes American governance. The filibuster is a method of delaying or blocking legislation in the Senate by endlessly continuing debate on an issue so that a vote can never be held. The only way to end a filibuster is to invoke cloture, which allows the Senate to end debate. However, cloture can only be invoked with a three-fifths majority vote. That is, legislation in the Senate needs 60 votes instead of the 51-vote simple majority that the Constitution stipulates for most legislation.
The filibuster is not in the Constitution. It was not even an original feature of the Senate. It is a historical accident established by Aaron Burr (yes, that Aaron Burr) that has had far greater consequences than Burr or anyone else could have envisioned. Ironically, Burr was trying to unburden the Senate from excessive procedural rules. Now, several scholars have gone so far as to call the filibuster patently unconstitutional. Because there is no constitutional basis for the filibuster, senators have changed the rules that govern it several times over the course of US history. The cloture rule, for example, did not even exist until 1917.
The filibuster itself was used relatively infrequently until the 20th century, when openly racist senators began employing it as a tool to preserve Jim Crow and dash anti-lynching laws and civil rights legislation. It was only in the last few decades that the filibuster morphed into its present form, the “silent” filibuster. Lawmakers no longer need to physically stand on the floor of the Senate and speak for hours on end for a filibuster to be effective. The mere threat is more than enough to kill incoming bills. The result, according to legal scholars Catherine Fisk and Erwin Chemerinsky, is that “[filibusters] are ubiquitous but virtually invisible.” Use of the filibuster soared in the 21st century, and following President Barack Obama’s arrival in Washington, its frequency skyrocketed. The era of senatorial compromise was over.
Because of the filibuster, noteworthy legislation is hard to come by these days. Following the onset of the Great Recession, there was a series of bills like the American Recovery and Reinvestment Act along with the Dodd-Frank Wall Street Reform. Then there was Obamacare in 2010. President Donald Trump’s most notable legislative achievement, the Tax Cuts and Jobs Act, came early in his term. In 2018, the First Step Act made modest strides toward criminal justice reform, but it can hardly be called landmark.
Besides this paltry handful, there have been no watershed moments in the American legislative arena as of late, even under the unified Republican government at the beginning of President Trump’s term. Gridlock, not governance, defines the Senate. Sometimes complicated problems have simple causes: the filibuster. In fact, the only reason why Trump’s tax reform was able to pass into law was because it was a filibuster-proof measure that could scrape through the Senate in the budget reconciliation process, requiring only 51 votes to pass. Budget reconciliation is one of the few ways that the Senate can circumvent the filibuster.
This is not how the American government is supposed to work. In the immortal words of President Lincoln, the United States is a government “of the people, by the people, for the people.” America chose a representative form of democracy. At its simplest, the American legislative process is a three-step operation. Step One: Voters choose their representatives by way of elections. Step Two: Those elected representatives make policy choices and enact laws. Step Three: Voters experience the outcomes of their representatives’ labors and decide whether they want to vote for those same representatives again or whether they would rather elect someone new who might better enact their policy preferences.
The filibuster derails Step Two. Senators cannot effectively enact laws because the 60-vote bar set by the filibuster makes legislating well-nigh impossible. Thus, voters cannot judge their lawmakers and make decisions about whether or not those lawmakers should be reelected.
Yet there are many who believe that the filibuster is an important pillar of the American legislative process. Proponents offer three core justifications: the civility argument, the fear argument, and minority rights argument.
The civility argument is expressed by Brown University’s professor Richard Arenberg, among others. Arenberg writes, “Experienced senators of both parties realize that [the elimination of the filibuster] would lead to the annihilation of the Senate as a body marked by negotiation, compromise and moderation.” He has also said, “How then should the majority party in the Senate deal with an obstructive minority? One solution is to generate political pressure on an obstructive minority. In the end, that is what got the 1964 Civil Rights Act and the 1965 Voting Rights Act passed. Opposition was overcome to generate bipartisan super-majorities to pass Social Security, Medicare, the Clean Air Act, the Clean Water Act, Medicare Rx Drugs, Alaska Lands Act, emergency disaster relief and much more.”
The core of this argument is that the filibuster necessitates compromise and assures moderation because that is the only way that legislation will move through the Senate. It is predicated on the belief that the 60 votes required to pass a law compels senators on both sides of the aisle to come together and talk things out in a tough but reasonable way. Some intellectuals and lawmakers who were in the Senate in the 1970s and ’80s might buy this argument because they experienced a far less partisan Senate than the contemporary chamber. Proponents of this explanation harken back to less divisive days in Washington. Perhaps this is a reason that most of the laws Arenberg cites as evidence that the filibuster is a tool of compromise are from before 1980, indeed, before 1970. But this isn’t Mr. Smith’s Washington anymore.
It should come as no surprise that political polarization is increasing in the United States. The ideological gap between Republicans and Democrats is widening. As that gap has expanded, so has the level of animosity that the left and right feel for each other. It’s emotional, not just ideological. As Americans grow more opposed to one another, so do their elected leaders. It is no longer in a lawmaker’s interest to collaborate with the other side; congressional politics has become zero-sum. To compromise is to capitulate. It would be a nightmare for reelection.
The filibuster fits this scene perfectly. It allows a senator to take an impossibly hard line, not budge an inch, and then kill whatever legislation that his adversaries propose. The filibuster is an ally of obstruction and the greatest enemy of congressional governance. The gap between the 51st and 60th vote in Congress is essentially unbridgeable in today’s partisan environment. The filibuster does not encourage bipartisanship, as its proponents contend. It is a weapon of blockage and partisanship.
There is no reason to believe that partisanship will not be a fixture of American politics and society for the foreseeable future. Preserving the filibuster in the hopes that partisanship might happily disappear is irrational. Crucially, because nothing about the filibuster is constitutionally mandated, the Senate rules could always be amended again to bring back the filibuster if one day the Senate becomes a more civil chamber.
Proponents of the filibuster also make an argument grounded in fear. The majority party has an incentive to preserve the filibuster because no majority lasts forever. When that majority party inevitably returns to the minority, they will value the filibuster as an important tool to obstruct the opposing party’s policies. In a New York Times op-ed, Senate Majority Leader Mitch McConnell (R-KY) wrote that if Democrats win back the Senate and kill the filibuster, “They’d regret it a lot sooner than they think.”
McConnell is right that Democrats might have reason to regret the move. He argues that the fear of the other party’s agenda is more salient than the duty to actually legislate. Just as Democrats would have the ability to pass sweeping legislation for the first time in generations, Republicans would be able to undo it as soon as they regained control of the chamber. The filibuster is radically undemocratic, and voters should have a say in which vision of America they prefer.
There’s a dirty secret that Republican lawmakers don’t want voters to know. Their policies, like tax cuts for corporations and the wealthy, are unpopular. More progressive policies, like regulating prescription drug prices and background checks for firearms purchased at gun shows, are widely supported. Republicans are afraid to govern because they fear the very constituencies that elected them into their offices. The filibuster allows them to shirk the duties of their offices and avoid the political repercussions that necessarily result from passing legislation. For small-government conservatives, this obstruction is the goal. But most Republican lawmakers in Congress have abandoned the type of conservatism that prizes fiscal responsibility and smaller deficits, and very few defend the filibuster with this justification.
Republicans aren’t the only ones to blame. Democrats fall into the same trap. Like Republicans who overpromise their ability to deliver policies attractive to the ideological right, Democrats promise progressive policies during competitive primaries and then backtrack when they actually get to Washington because they fear the political ramifications of bold action. The filibuster lets politicians blame their own political cowardice on “the rules.” No matter which party takes control of the Senate in 2021, its members will have an opportunity to prove their political mettle even though it is possible, indeed probable, that their political opponents will one day have that opportunity as well. This is how good governance works.
The final argument for the preservation of the filibuster hinges on the importance of minority rights. Tyranny of the majority is a legitimate fear, but so is tyranny of the minority. Protecting minority rights is not equivalent to protecting minority rule. The filibuster is a check on the Senate majority and an additional veto point in a legislative process that already has too many veto points. The minority rights argument fails to recognize the truth of the filibuster. It is not just a check, it’s an insurmountable obstacle that makes legislating impossible. Moreover, this argument does not account for the inherently minoritarian nature of the Senate. The way seats are allocated in the chamber – two per state – means that voters in low-population states have outsized influence relative to voters in high-population states.
The existence of the filibuster in an already minoritarian chamber is redundant at best. It is worth noting, however, that because of the minoritarian nature of the Senate, the Senate majority might not actually represent the majority of Americans. In this counterintuitive case, the filibuster might actually be a tool of the national majority even if exercised by the Senate minority because the minority in the Senate is not the same as the minority in the United States.
Eliminating the filibuster is not a new idea. Confronting the US entrance into WWI in 1917, President Wilson declared, “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”
But the truly pernicious power of the filibuster has become even more apparent in recent decades. If voters want a government that can function properly and pass legislation that they can dutifully judge as good or bad, then the Senate must eliminate the filibuster. Plus, it’s not as though only one side of the aisle wants to do away with the filibuster. Both President Trump and Senator Bernie Sanders have openly supported its elimination.
The Constitution asks a great deal of the government: establishing justice, ensuring tranquility, providing defense, promoting welfare, and securing liberty are tall orders. The Senate has a duty to perform its honorable obligation and faithfully discharge the duties assigned to it. It has a duty to make the country better and to improve the well-being of the American people. At present, senators have abdicated this sacred duty because they find it more politically convenient to pass nothing at all than to pass potentially unpopular policies. The only thing holding back the Senate is fear. With the filibuster in place, senators cannot discharge their duties, faithfully or otherwise. A senator’s place should never be with those cold and timid souls who know neither victory nor defeat.
Photo: Image via Flickr (Peter Schultz)