Commentary: The filibuster needs to be reformed

May 11, 2021 6:10 am

Senate Minority Leader Mitch McConnell of Kentucky leaves the Senate chamber. As a parliamentary rule, the filibuster can be easily changed by a simple majority. (Getty Images)

The will of the voters is being thwarted. Elections are losing their meaning. And democracy is being mocked before our very eyes. 

Not by mythical voter fraud or conspiracy, but by Senate Rule 22 – known more colloquially by its stage name, “the filibuster.” Rule 22 is as mundane on paper as it is mighty in practice. It states that a two-thirds vote is required to end debate in the U.S. Senate and enable a vote on the underlying bill. In practice, the result is to grind the Senate to a near standstill by requiring a supermajority to act on legislation – a near impossible feat in today’s hyper-partisan environment. 

This supermajority requirement is antithetical to American democracy, which rests on the will of the governed. Such will is reflected in elections that are decided by a simple majority and by legislative bodies being in control of the party that wins a majority (however simple) of seats. The Senate can keep the filibuster or it can respect the will of the governed, but it cannot do both. 

A slew of political myths and fabrications have been erected to justify retaining the filibuster. But they are just that, myths and fabrications that fare poorly against history and fact. 

Start with the most basic fact, the filibuster is mortal. It is a Senate rule, not a law. It is not in statute or the Constitution. As a parliamentary rule, it can be easily changed by a simple majority. And reformed it has been, several times. Most recently, the filibuster was removed by Democrats in 2013 for confirming lower court judges and most executive nominees. Republicans followed suit in 2017 by removing the filibuster for Supreme Court justices.  

Next fact, the filibuster is not a founding tenet of the Senate. It actually stands in defiance of the Senate’s origins. When our Founders set out to design the U.S. Senate, they sought to apply lessons learned from the failed Articles of Confederation. 

One of the many reasons that the articles failed is that they required a supermajority in the form of consensus amongst the existing 13 states to pass federal legislation. Such a threshold served essentially as a blockade in the legislative process. 

To avoid this, our Founders designed the U.S. Senate to be ruled by a simple majority. The filibuster, which came about decades after the Senate was established, defies our Founders’ attempt to learn from history and spoils the design of the Senate. 

And please spare me talk of bipartisanship. There is no bipartisan magic to the number 60. Legislation is considered bipartisan as soon as it has the support of single Democrat and a single Republican. Legislation with the support of 50 Democrats and nine Republicans would be bipartisan, and yet it would still be blocked by the filibuster. Even legislation supported by 25 Democrats and 26 Republicans would be blocked. 

If the filibuster was about bipartisanship, the rule would be such that it could be used only against partisan legislation. Except the rule says nothing of the sort, caring only about numbers and not party.  

If one party had a supermajority threshold in the Senate, it could overcome the filibuster with 60 of its own members, defying bipartisanship entirely. The argument for retaining the filibuster has nothing to do with bipartisanship and everything to do with politics.

There used to be a certain romanticism to the filibuster with the idea of a senator owning the Senate floor with the conviction of their ideas until their own exhaustion beat them down. 

Filibusters involved rousing oratory or testaments to one’s own patience with renditions of the telephone book, the Merriam-Webster dictionary, or one’s favorite cookbook. By requiring a senator to publicly hold the floor, transparency and accountability were built into the system. 

A senator had to publicly carry out a filibuster, which meant spending political capital and subjecting oneself to public scrutiny for their actions. The senator’s voters could decide if the filibuster was heroic or obstructionist. And, a spoken filibuster inevitably came to an end because as mere mortals, humans can speak for only so long. 

Today’s filibuster is silent and lethal. No longer does a senator have to explain their reasons for filibustering or even expend breath to invoke it. Instead, a senator need only convey their intention to filibuster for legislation to come to a screeching halt. There is no romanticism to today’s “silent filibuster.” Quite the opposite. It is a disgrace in a legislative body intended for great debate. 

Now for the most nefarious argument for keeping the filibuster – getting rid of it is only about party power. This argument is perpetuated by both parties. While Democrats currently are in “control” of the U.S. Senate, even some Democratic senators argue against removing the filibuster now because they want to be able to use it against Republicans when the tables are turned. 

Elections either matter or they don’t. If Democrats lose control of the Senate, they should effectively lose control, meaning they don’t retain some power thanks to the mighty filibuster. 

There is one caveat to this that is worth acknowledging. Matthew Stephenson, Jonathan Gould, and Kenneth Shepsle recently wrote an op-ed in the Washington Post about how the filibuster could be democratized. Their proposal is compelling. 

They make the data-driven argument that Republicans, even when they have controlled the U.S. Senate in recent years, rarely represent a majority of the American population. This is because Republican states are generally less populated than Democratic states. Their argument is that for the filibuster to be democratic, the hurdle to overcome it should not be a specific number of votes, but a specific number of voters as represented by their senators. 

If a senator were to propose this change to Rule 22, I would at least be curious to see it play out in practice (with gratitude that I would not be the one doing the math). 

In the absence of this alteration, the filibuster needs to go, or at least be substantially reformed. Elections lose their relevance when the will of voters can be obstructed by a minority of senators armed only with parliamentary procedure. 

Imagine if the filibuster was proposed for the NH Senate? If someone proposed that the party in power of the New Hampshire Senate be required to overcome a supermajority threshold to pass a bill, the proposal would be dead on arrival. It would be lambasted as anti-democratic and an attempt by the minority to thwart the will of voters who put the majority in power. 

In New Hampshire, there is a supermajority requirement to pass a constitutional amendment and to overcome a gubernatorial veto. This elevated requirement is responsive to the magnitude of these two respective measures as compared to passing regular legislation. 

The only reason the filibuster still exists is because it predates us all, enabling the argument that the filibuster has endured all this time so why eliminate it now. Except longevity is a lousy replacement for reason. 

The filibuster’s own history should be the final nail in its coffin. The filibuster’s highlight real involves repeated defeats of civil rights legislation and continuous adaptation to protect white supremacy. Right now, the filibuster is poised to defeat legislation to protect voting rights. There is no democratic equivalence between voting rights and parliamentary procedure. The filibuster’s history is damning and will play on repeat until the Senate finally puts it out of its misery. 

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