OP-ED: The filibuster needs to be eliminated
The filibuster is an archaic Senate procedure that was primarily used by segregationists to stop passage of Civil Rights legislation during the 20th century. In the 21st century, it is primarily used by a minority of senators to stop legislation that is too popular to stop by conventional political means. It creates dysfunctional government, and needs to be eliminated.
The filibuster is not in the Constitution. It was created as an accident of history, when Aaron Burr simplified Senate procedures in 1805 by eliminating “the previous question” mechanism that shut off debate. Its most famous usage was by Southern Democrats to stop passage of the 1957 Civil Rights Act, when Strom Thurmond held the podium for 24 hours.
The founding fathers did not want to require “supermajorities” to pass legislation, as the 60-vote requirement to end a filibuster does. This can be seen in their treatment of the need for a quorum. To achieve a quorum, they only required a majority of the body. Requiring more would allow the minority to prevent business by not showing up, and in Alexander Hamilton’s words, “subject the sense of the majority to that of the minority.” This is exactly what the filibuster does.
The House used to allow a filibuster, but got rid of it in 1891. Filibuster supporters argue that it encourages bipartisanship, because it is likely that the majority will have to appeal to the minority to pass legislation. But in today’s polarized, zero-sum game, Mitch McConnell has demonstrated that scorched-earth politics can win elections; by keeping any Republicans from cooperating with the Democrats on any major legislation, McConnell limited Democratic success, and helped Donald Trump defeat Hillary Clinton in 2016. In a political environment where compromise will get members of Congress primaried, the filibuster is used to derail legislation, not create compromises.
McConnell used the filibuster to thwart the agenda of a popular president, and fears his inability to have an impact on policy without it. He has threatened Democrats by saying if they eliminate it, he would make the Senate “like a 100-car pile up. Nothing moving.” The problem for McConnell is that he’s already adopted such a policy, so the Democrats have nothing to lose. He was happy to be called the “Grim Reaper” as he prevented almost 400 bills passed by the House from even being considered by the Senate.
Historically, someone wanting to filibuster had to hold the floor, which was physically challenging but also put pressure on both sides of the debate, since no business could occur while the filibuster was occupying the Senate. In 1972, Sen. Robert Byrd created a dual-track system which allowed a filibuster to prevent a specific action, but also allowed other business to continue. This removed one of the levers that had been used to force senators to compromise.
In 1975 in the wake of Watergate, revisions to Senate Rule 22 changed the number of votes required for cloture from two-thirds (67 votes) back to three-fifths (60 votes), which seems like it would make it easier to end a filibuster. But they also changed the denominator from senators “present and voting” to the entire Senate (always 100), which actually made it harder to end a filibuster. Previously, filibuster supporters had to remain in the Senate to keep it going (because they had to be present to count); if enough left, the senators opposed could have enough votes to end it.
To pass legislation that can’t be held up by the filibuster, legislators have used budget reconciliation, which allows legislation that had sufficient budgetary impact (as determined by the Senate Parliamentarian) to pass with a simple majority vote. The very existence of this work-around demonstrates the need for reform, because it recognizes that the filibuster can prevent government from functioning. Trump’s tax cuts were passed this way, but when Democrats tried to use it for raising the minimum wage, the Parliamentarian would not allow it. Supporters considered implementing a tax on companies who paid employees less than the minimum wage as yet another work-around, which demonstrates the absurdity of trying to govern this way.
While the simplest fix would be to eliminate the filibuster, there are reforms that could work. The most effective would be to require a decreasing number of senators to end the filibuster. Overcoming a filibuster would initially take 60 senators, but that number could be reduced steadily over time, until after a month the legislation could pass with a simple majority.
Another option is to go back to requiring senators who want to filibuster hold the floor and talk, which requires enough effort to reduce filibusters to the most important issues. Norm Ornstein, a scholar from AEI, a conservative think-tank, suggested flipping the script, and making senators who filibuster maintain 40 votes to keep it going. This would require that at least 40 senators from the minority remain at the Capitol, rather than putting the onus on the majority to break it. Right now, senators can filibuster legislation simply by declaring their intention to do so.
The bottom line is that something needs to be done. Our political system doesn’t work very well when the majority cannot govern. That leads to presidents who govern by executive orders, rather than passing legislation, leading to the worst of both worlds: governance that is not publicly debated and can easily be reversed by the next president, making weaker laws and the system less stable.
Elections should have consequences. The party that wins should be able to enact its agenda. When voters elect a candidate, and that candidate cannot achieve what was promised because of the filibuster, voters will rightly lose faith in the system, which can lead to apathy or going outside the system, neither of which is good.
Kent James has a doctorate in History and Policy from Carnegie Mellon University and is an adjunct in the History Department at Washington & Jefferson College.