The Democrats Should Eliminate the Filibuster
For decades progressive Senators have tried to eliminate the filibuster only to be blocked by obstructionists. It is time to eliminate this relic of times past.
The idea advanced by many with conservative leanings argue that the legislative filibuster is good for American politics. That the filibuster forces the party in the Senate majority to compromise with the party in the minority. The thinking is that the filibuster ultimately leads to laws that are less partisan and more consistent with mainstream America. They also argue that the filibuster is consistent with the intentions of the Founding Fathers in that the Senate should be the more deliberative body in American politics. All of these propositions are unfolded. If the Democrats have the opportunity, they should eliminate the legislative filibuster and enact policies the electorate voted them in the majority to achieve. Otherwise, Republicans will use the filibuster to block Biden’s administration agenda, and come the 2022 election, the electorate will hold Democrats responsible for their failure to implement promised polices and return Republicans to the majority. And when Republicans are the majority party, they will eliminate the filibuster when they have the opportunity and interests to do so.
Origins of the filibuster
The concept of the filibuster is not in the US Constitution. However, the Senate, as any governing body, has rules by which the institution manages itself. One important and early rule is called the “previous question” rule. This rule was the means in which the Senate could stop debate on a bill, through a procedural vote, and move to a final vote. The process of stopping debate and moving forward is called “cloture.” Cloture by simple majority was the standard until the late 1820s.
In 1806 there was a famous moment in the Senate when Aaron Burr gave an address for one final time. Burr had just been indicted for murdering Alexander Hamilton by dual. Understand that Burr was a huge individual in American politics and senators were rapt by his address. He offered a number of recommendations for streamlining Senate procedures, which by standards of the day, were considered overly complex. One recommendation was the elimination of the previous question rule (i.e., cloture). This recommendation was accepted and by most accounts considered a misunderstood mistake. The effect of the rule change didn’t come in existence in American Politics until 1828 when the Senate attempted to correct the mistake but was stymied by Vice President John C. Calhoun, as the Presiding Officer of the Senate. Later when Calhoun was elected to the Senate, he employed the cloture rule change to block the majority. The filibuster was born. If Aaron Burr was the father of the filibuster, then John C. Calhoun was certainly its midwife.
60 Votes Required in the Senate vs Majority Rule
A common misunderstanding of the filibuster is that it means that 60 votes in the Senate are required simply to pass any bill. Not to be overly pedantic, but the filibuster does not mean that. The filibuster, as it stands today, simply states that cloture requires 60 votes to end debate before moving to final vote on a bill. The original filibuster required 67 votes for cloture and the minority party had to physically speak for an extended period. This brings to mind Jimmy Stewart as Mr. Smith Goes to Washington and filibustering until exhaustion. Over time the filibuster evolved to only require 60 votes for cloture and the requirement for actual speech was also removed. These changes and the simple threat of filibuster in effect, now means that a bill in the Senate does require 60 votes for passage. This is because the minority party can simply block a bill by stating their intention to filibuster.
Requiring 60 votes in the Senate for passing a bill is a fundamental alteration of governance the Founding Fathers had not intended. Requiring 60 votes is antithetical to majority rule in the Senate. In Federalist 58 Madison argued in favor of strict majority rule. Madison states “in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.” The Founding Fathers were not without concern of the tyranny of the majority, and to offset majority rule entirely they implemented measures in the Constitution to protect minority rights through provisions such as providing two Senators for each state, giving them a six-year term and the requirement that Senators to be older than member of the House. However, their intentions were not to eliminate majority rule in the Senate.
The filibuster does not lead to compromise, but creates obstructionism
The idea that the filibuster has led to more deliberation and compromise is a misrepresentation of history. The filibuster has typically been used to disenfranchise the poor and powerless against the interests of the rich and powerful. Most notably, the filibuster was used in the 1940s and 1950s by southern Senators to block passage of civil rights legislation, even though there was wide public support for such laws. Examples of such legislation include anti-lynching laws and outlawing poll taxes. The filibuster often ultimately failed to completely stop legislation, but that wasn’t the case with civil rights. From 1887 until 1964, the only bills that were completely stopped by the filibuster was civil rights legislation.
Republicans will do away with the filibuster when needed
Some Democrats fear that if they eliminate the filibuster now, then at a future date, when Republicans control the Senate, they will be without the filibuster to protect their cause. This is a fallacy in at least two ways. Firstly, Republicans have already shown that they will weaken or eliminate the filibuster when it serves their cause. Most recently, in 2017 the Republican-controlled Senate altered the filibuster rule to allow a simple majority to advance Neil Gorsuch to the Supreme Court. Secondly, if and when Republicans takeover the Senate, then they have in effect convinced the American electorate of the value of their policy preferences and deserve a stronger hand in advancing such policies. Future elections will reflect whether Americans agree with Republican policy choices. That is what was intended by the Founding Fathers.
Decision making in the Senate has become too fixated on blocking the other party and not focused on what is best for the American public. In today’s highly polarized political landscape, blocking the other party has become so personalized that too often Senate members across the aisle are vilified as the enemy. The filibuster makes the situation worse by giving a huge hammer to a few that ultimately leads to less compromise. Democrats need to stand for effective government and do away with the filibuster.