Richard A. Arenberg is a Senior Fellow in International and Public Affairs and a Visiting Professor of Political Science at Brown University. Prior to coming to Brown, he spent over 34 years working on Capitol Hill as a senior staff member under Majority Leader Senator George Mitchell (D-ME), Senator Carl Levin (D-MI), and Senator Paul Tsongas (D-MA). He co-authored Defending the Filibuster: The Soul of the Senate with former senate parliamentarian Robert Dove, and has published numerous pieces in the New York Times, The Washington Post, and The Wall Street Journal, among other news outlets. Professor Arenberg’s focus is on the role of the US Congress in public policy, as well as Congressional history, procedure, rules, and protocol.
Alyssa Merritt: You are famously an ardent supporter of the filibuster. What originally informed your view of the filibuster?
Richard Arenberg: My experience on Capitol Hill is really the starting point. From the time that I got there in the mid-1970s, I was aware of the fundamental role of the filibuster. I wrote a book about it called Defending the Filibuster: The Soul of the Senate. The filibuster hasn’t always been positive. I consider the abuse of the filibuster during the Civil Rights Era wrong and immoral, but, in the long span of the Senate’s history, it’s been central in protecting the role of the minority party in the legislative process, and I think that’s crucially important. Although the filibuster is often framed as a partisan issue, it isn’t, really. Whichever party is in the majority doesn’t like the filibuster; whichever party is in the minority appreciates it. Right now, the Democrats are very opposed to it, and I’m sympathetic to their frustration about the abusive use of the filibuster by the current minority party.
AM: Given that there have been instances when you opposed the way in which the filibuster was used, has your opinion on the filibuster ever changed?
RA: There are periods of time, most notably right now, where we have issues like voting rights and the adoption of the Biden agenda. It’s no secret that my background is as a Democrat; I worked for three Democratic senators, so I share their frustration about what’s going on right now with a number of issues, but I think it’s very short-sighted to think that the solution is to tear up the Senate rules.
AM: Do you support any reforms to address these problems imposed by the filibuster?
RA: I have for a long time supported a number of reforms, including reducing the number of opportunities to filibuster a single bill. In the Senate, the majority leader needs to adopt the motion to proceed in order to bring a matter onto the floor for debate and amendment. The motion to proceed is a debatable matter, which means it can be filibustered. In these days of extreme partisan polarization, bills are often filibustered before they are even brought up. It’s important that the minority have the right to filibuster a bill, but I don’t think that this kind of double-dipping is necessary. I would make that motion to proceed non-debatable or limit debate. I think that would reduce the number of filibusters we see.
Another thing is cloture, which is the motion to end debate and is how you end a filibuster. The rule says three-fifths duly chosen and sworn. If it’s three-fifths duly chosen and sworn and there are one hundred senators, three-fifths is sixty. I would propose changing that language to three-fifths present and voting. If everybody was voting, that would be sixty senators, but if senators are not present, it would take a smaller number to get to three-fifths. This is important because, under the current circumstance, senators who are supporting the filibuster don’t have to be present. Changing the rules to three-fifths present and voting would make it more burdensome for the minority to carry out a filibuster.
Many people have talked about the so-called talking filibuster, which is the idea of returning to when filibusters were largely carried out by senators speaking on the floor. I think it’s a positive thing, although I would say two things about it. Number one, it’s not really a reform, because it could be done right now by the majority leader if he chose to. Secondly, I’m not sure this would have the end-effect that a lot of proponents of the talking filibuster believe it will. However, it could test the seriousness of those filibustering a bill.
To add one more thing, on a number of occasions, I have suggested that the parties set up a bipartisan select committee or task force to negotiate filibuster reforms. I would propose this be done in a period like we’re coming into now, where we are approaching a Senate election but it’s unclear which party will win the majority. That’s the ideal time to negotiate this kind of reform because nobody will know whether they’re negotiating for the majority or minority position. The only thing on the table would be what works best for the Senate and the country. I like to compare that to the old trick a lot of parents use. If you’ve got two kids and a piece of pie and they’re going to share it, you say to one kid, “You divide the pie, and the other one will choose which half he or she wants.” You get the most immaculate division of that piece of pie. Just like in this scenario, neither party would know whether they were going to be using these rules in the future as the majority or the minority, so they could negotiate in good faith.
AM: One of your main arguments in Defending the Filibuster concerns the importance of the filibuster in keeping the Senate a non-majoritarian body where both parties’ voices are heard. However, in our country today, the twenty-five most populous states have more than three-quarters of the nation’s population, which makes the Senate a body that overrepresents the interests of a smaller number of people. What is the value of having a congressional body that overrepresents certain interests in a representative democracy?
RA: The problem you’re pointing to is a problem people have with the Great Compromise. It’s the design of the Constitution. Equal representation of the states in the Senate is the only thing in the Constitution that’s not subject to amendment under the ordinary rules for amending the Constitution. Article One states that no state may be deprived of its equal representation in the Senate without its agreement. In effect, that means it would take the states’ unanimous consent to actually change that. It’s a fundamental part of how the founders saw the structure of the American government going forward.
Having said that, I think there’s some value to it. From time to time, we see, for example, instances where larger states would be able to dominate the interests of smaller states on a number of issues. The smaller states, as you say, have more leverage in the Senate; the larger states have more leverage in the House of Representatives.
AM: Those in favor of abolishing the filibuster argue that it prevents the progressive agenda from overcoming the obstructionist practices of the minority. What is your response to this argument?
RA: The real disease Congress is struggling with is hyper-partisan polarization. Eliminating the filibuster won’t solve that problem; it’ll exacerbate it. In the short term, politics tends to be a little myopic in that people holding office struggle to see past the next election. In Congress, the next election is two years away or less at any given time, so it can be hard to get office holders to focus on the longer term. Eliminating the filibuster to accomplish the Democrats’ agenda is very-short sighted because one thing we know for sure about the Senate is that one party won’t control it for long. If you are going to seize power for the majority to pass things that I support—like the Voting Rights Bill, the codification of Roe v. Wade, an increase in the minimum wage, and other items on the Biden agenda—you have to think about what would happen if the Republicans take the Senate and House back in the next Congress or if we have a Republican president after the 2024 election.
Remember, for the first two years after he was elected, Donald Trump had a majority in both houses and repeatedly demanded the Senate eliminate the filibuster. Well, Mitch McConnell stood his ground. It’s about the one thing on which he didn’t follow President Trump’s demands. If the Democrats were to eliminate the filibuster to pass the Voting Rights Bill, for example, in order to deal with voter suppression-designed bills that are being passed in various red state legislatures, you have to ask: In the event of a Republican president and a Republican Congress, could these voting suppression laws be passed by Congress as national laws?
Similarly, people are concerned about responding to the unconstitutional anti-abortion bill that’s been passed in Texas. Rightly, Democrats would like to see Roe V. Wade codified so that women’s rights are protected, but, without the filibuster, Democrats wouldn’t have been able to block Republican legislation attacking a woman’s right to choose. About 8 or 10 times over the last dozen years, the Democrats have used the filibuster to do so. If you get rid of the filibuster then what happens when the Republicans want to make that Texas law the law of the land and pass it on a national basis through the Congress? The minority would no longer be in a position to prevent that from happening.
AM: The advent of the nuclear option removed the use of the filibuster on judicial nominations. What were the implications of this choice?
The elimination of the filibuster on judicial nominations reflects this short-sightedness I’m talking about. The Democrats first used the nuclear option in 2013. Four years later, the Republicans used the Democrats’ precedent and expanded it to the Supreme Court. This has created a much more politicized judiciary. When the filibuster still existed for judicial nominations, every president of both parties had to consider the minority when deciding their nominees because they knew they needed the support of at least some portion of the minority. This tended to make the process a little less politicized and a little less extreme. It led presidents to choose Supreme Court nominees who had a better chance of getting support from the minority. That’s all gone now. Donald Trump didn’t have to worry about whether any Democrat would be upset by his three Supreme Court nominations. In fact, all three of them would likely have been filibustered by the Democrats for different reasons.
It’s also important to note, when discussing the nuclear option, that the rule didn’t change; it’s the interpretation of the rule—the precedent in the Senate—that changed. The words in Rule Twenty-Two (the cloture rule) say that invoking cloture takes three-fifths duly chosen and sworn, but when we’re talking about judicial nominations, the Senate now interprets the words “three-fifths duly chosen and sworn” as meaning a simple majority. You don’t have to be an English major or a math whiz to recognize that that’s ridiculous.
If I could wave a magic wand and change the Constitution a little bit, I would require a supermajority for judicial nominations. You wouldn’t have to filibuster them; it would be part of what was required. If you’re going to put someone on the federal bench for life or until they decide to retire, unless they are subject to impeachment, then it’s not such a bad thing to have a system that requires both parties to have some leverage on these nominations.
AM: The filibuster is not mentioned in the Constitution, which is why some deem it either undemocratic or unconstitutional. How do you respond to those arguments?
RA: Opponents of the filibuster like to declare that the filibuster is not in the Constitution. In all the years I spent on Capitol Hill, I never heard any senator or defender of the filibuster claim that it was, so that’s not really a revelation. I don’t believe that the filibuster is unconstitutional, although it wasn’t designed as a part of the Constitution. Article One Section Five, says that the Senate has the right to write its own rules, and there can be no more central rule in a legislative body than handling debate and determining how to move forward to a vote. The rules written by the Senate are squarely within that constitutional provision, so I don’t think there’s any question that the filibuster is constitutional.
Now, to address the argument about how democratic it is. My view of democracy is that it is not just a simple question of majority rule. There’s the matter of minority rights, so there needs to be some sort of balance in a true democratic system. Somebody once wrote, “Democracy is something more than two wolves and a sheep voting on what to have for dinner.”
AM: You co-authored an article for the Wall Street Journal where you discussed how the threat of the filibuster blocks legislation more often than actual filibustering does because there are often not enough senators to sustain an actual filibuster. If this is true, why do senators scare easily at the threat of a filibuster?
RA: I don’t think that they do entirely, but I would go further than just saying that it’s the threat of the filibuster; it’s the existence of the filibuster. In my classes, I like to point out that I worked for three Democratic senators. In all the years I worked for them, every time I brought a proposed amendment or legislation for the senator to introduce, each senator I worked for would begin by saying, “Who’s my Republican co-sponsor?”, because senators know you can’t get much traction on anything in the Senate if you don’t have some buy-in from the opposition party. I think that’s a good thing in a legislative body.
You don’t get that question in the House of Representatives. It’s not relevant. If you want to get something passed in the House of Representatives, you better be in the majority and have support for your legislative proposal. In the Senate, sometimes before you even introduce legislation, you begin to work with people across the aisle to see if you can find some common ground. Many times, I’ve gone to the staff of Republican senators on behalf of my boss and said, “Look, the senator is thinking about this particular piece of legislation. How would we need to change it, or would we need to change it to get your boss to come on as a co-sponsor or co-author?”
When the threat of the filibuster is used on the floor, it’s up to the majority to put the pressure on. We say that there’s wide public support for virtually all the items on the Biden agenda. If you look at the polling, all of the items have pretty strong and even bipartisan support in the electorate. Well, use that. Make them stand on the floor and debate for as long as it takes to pass the particular piece of legislation and try to use the political support outside of the Congress to put pressure on the inside of the Congress.
AM: The filibuster and obstruction have become intertwined in recent years. Some claim the filibuster promotes obstruction, while others think the polarization in Congress led to the abuse of the filibuster. What do you think?
RA: The basic problem has been increased polarization. To find its roots, you can at least go back to when Reagan was elected in 1980. From that point forward, you begin to see a shift in the Congress towards the parties getting more and more ideologically homogeneous. Because of that, they then wanted to have stronger partisan leadership for their respective caucuses. When those caucuses were less homogenous and we had liberal Republicans, we had the whole spectrum: Liberal, Moderate, Conservative Republicans, and the same thing in the Democratic Party. Leadership tended not to be as strongly ideological because members worried that their caucus would be led in a direction that was uncomfortable for them politically.
I like to crank my right arm when I talk about polarization because I see it as a self-reinforcing process. If you study roll-call votes from 1980 forward to the present day, they get more polarized year by year, all the way to the present. The environment in both the House and the Senate have become much more toxic as a result because, with these polarized, ideological divides, both parties have taken to demonizing the opposition. That affects the manner in which a body like the Senate, in particular, does business. A lot of Senate rules can be pulled to great extremes in order to service partisan warfare. All of this is very corrosive in a democratic system
We’ve got to get back to trying to solve the problem of the hyper-polarization in our political environment, rather than mucking around with the filibuster rule. As I said at the outset, if you eliminate the filibuster, that’s going to be just another turn of the screw. McConnell already said, “If the Democrats eliminate the filibuster, it’ll be nuclear warfare in the Senate.” People like to say, “Well, I don’t think they’re very cooperative now,” but the truth of the matter is the Senate virtually can’t operate without some cooperation between parties.
The founders designed one body to be responsive. They wanted the House of Representatives to be responsive to public opinion, and it is. The majority works its will through the House of Representatives very easily. The Senate was designed really to slow things down, to be more deliberative, to counterbalance the House of Representatives. The filibuster is only one part of that, but it’s an important part of it, in my judgement.
AM: You’ve expressed your fondness of sharing old “war stories” from your days in Congress with your students. Is there a particular war story that you would like to share with our readers?
RA: I was very deeply involved with the passage of the Alaska Lands Act in the late 1970s, which put a great deal of territory in Alaska into the national park system and wilderness system. I’m very proud of the role I played in passing this legislation. Jimmy Carter gave me one of the pens used to sign that bill into law, but the point I wanted to make is that the filibuster played a very important role in our ability to pass it.
The senior senator from Alaska, Republican Ted Stevens, who had a lot of power in the Senate, was opposed to the aggressively environmentalist version of the Alaska Lands Act. The Alaska Lands Act was very controversial in Alaska where there are a lot of hunters who were not happy about land being made ineligible for hunting. Mining interests and oil interests were also very important in Alaska and very resistant to the Alaska Lands Act because it was a conservation measure, so there was a lot of pressure on Stevens.
Stevens was opposed to the aggressively environmentalist version of the Alaska Lands Act, but we negotiated with Stevens because he understood that a bill needed to be passed and wanted to put the whole issue to bed. I was working with Paul Tsongas at the time, and we worked with Ted Stevens for better than a year, negotiating. It’s a massive piece of legislation—thousands of pages. We negotiated virtually every word with him, but the stick in the closet he always had was the filibuster, and we didn’t want him to use it. This kept us at the table and working on it, and, eventually, we wound up with a bill that we were very happy with. Steven’s constituency wasn’t very happy, so after having negotiated with us, he still filibustered it, but we managed to get more than sixty votes, override the filibuster and get it signed into the law by Carter. There’s an old war story.
*This interview has been edited for length and clarity.