Frankly, My Dear, I Don’t Give a Filibuster
The filibuster prevents fruitful legislative action
January was a month of change for our nation’s Capitol.
The speaker of the House’s laptop was stolen by a woman who tried to sell it to Russia’s foreign intelligence service. The vice president’s special chair for certifying elections was temporarily occupied by a discount-viking insurrectionist. One of the American flags that usually soars over the shiny dome of democracy was replaced by a Trump banner.
Oh, and the Democratic Party won control of the Senate.
But don’t get too angry or too excited about this transfer of power. One major obstacle still stands in the way of Democrats achieving their most progressive policies: the infamous filibuster.
In the Senate, if a motion or measure lacks the support of all 100 senators, then a majority of senators must file a cloture motion, which currently requires 60 votes to pass, in order to proceed without unanimous consent. If 59 or fewer senators vote for cloture, then the process ends, and the measure under question has been officially filibustered.
In practice, this procedural rule means that most bills require at least 60 votes in the Senate to pass. A minority of just 41 senators can filibuster and kill most legislative action.
And by now, if you’re a fan of keeping up with the Capitol—or if you’re eager to see Democrats achieve anything outside of deficit-neutral reconciliation deals—you’ve likely encountered an article or two about why it’s time to get rid of the filibuster once and for all.
You may have heard about the filibuster’s unceremonious origins—that it wasn’t included in the Framers’ original plan for the Constitution. That our favorite founding father slash Broadway superstar thought a filibuster-style rule would hurt our country (check out Federalist 22). That the man who shot and killed our favorite founding father slash Broadway superstar unintentionally led to its development in 1805. The filibuster isn’t a core component of “the world’s greatest deliberative body.” It’s just a quick fix that stuck.
You may also have heard about how the filibuster has been one of racists’ favorite weapons against racial justice. Before the Civil War, John C. Calhoun and other pro-slavery senators popularized the filibuster as a means of killing any piece of legislation that even hinted at the idea that Black Americans deserved freedom.
Flash forward over one hundred years, and Strom Thurmond set the record for the longest individual filibuster at 24 hours and 18 minutes. His target? The Civil Rights Act of 1957.
But I’m not here to litigate the filibuster’s ugly past. I’m here to point out why we should end the filibuster for good. Not for partisan concerns, but because it’s bad for democracy.
“A practical consequence of breaking the filibuster rule is legislative whiplash,” tweeted senior Texas Senator John Cornyn. “Each time a party gets a bare majority, it can jam a bill through, only to be reversed when the tides turn.”
While this claim hasn’t been borne out in state legislatures that chose to eliminate their filibusters, I would argue this wouldn’t be the worst development for our national democracy. Our republic rests on our ability to elect representatives who then act on our interests in government. But if our leaders can’t act—if they lock us in a legislative quagmire (which the filibuster makes extremely likely in today’s politics)—how can we make effective choices about who to represent us in D.C.?
If, for example, a Democratic-controlled Senate passes a bill that the people despise, so much so that they give Republicans a majority in the Senate at the next election, I hope that Republican majority, even if it lacks the 60 votes required to beat the filibuster, can do what the people elected it to do and get rid of the bad law. That’s not legislative whiplash—it’s democracy.
We the people have a right to see our needs materialize in our government.
One of the biggest arguments you’ll hear against this type of lawmaking is that the filibuster protects against the “tyranny of the majority.” Without the 60-vote threshold, friends of the filibuster claim, there will be nothing to stop a rogue majority from trampling on the rights of the minority.
But how exactly would a thin Senate majority stomp on the rights of those represented by the minority in the chamber? Our constitution enshrines our right to life, liberty and the pursuit of happiness. A slew of amendments guarantee our access to equal protection and due process (among numerous other liberties) in the eyes of the law. Our watchful Supreme Court holds the power to strike down any law that infringes on the rights of the people, whether their party holds a majority in the Senate or not.
Yes, our institutions are fragile and require constant upkeep, but if a rogue Senate were to pass any law attacking these constitutionally protected rights and freedoms, surely the lack of a 60-vote threshold wouldn’t be the biggest threat we’d be facing as a nation.
Besides, the Senate already elevates the interests of the minority over those of the majority. By its actual constitutional design—not some unintentional rule change from the Jefferson administration—the Senate apportions two senators to each state regardless of population. It’s why Texas’ nearly 29 million people wield as much power in the Senate as the just over 600,000 residents of Vermont. It’s why, according to the Washington Post, two-thirds of Americans will be represented by just 30% of the Senate by 2040.
The Senate inherently protects the rights of the minority. Its design offers the minority an institutional advantage far more powerful than any filibuster.
So, what exactly does the filibuster do? The answer: it prevents lawmakers from making laws.
“Elections have consequences,” is a phrase we often hear when a new party comes to power and attempts to implement their legislative agenda. And they’re right. In a functioning democracy, elections should have consequences. In 2017, when the filibuster stood in the way of a duly elected president’s nominee to the Supreme Court, the Republican majority in the Senate eliminated the filibuster in regard to Supreme Court nominees.
Even though Republicans won the election, the filibuster prevented them from fulfilling their vision for government. So, they did away with the rule. And no matter what you think about that particular seat on the Supreme Court, you can’t disagree that our lawmakers are obligated to fulfill the jobs we elected them to do. It’s the only way our democracy truly works.
Republicans realized the filibuster impeded their duty to their constituents, so they fixed that problem. And the same principle applies to the Democrats who got rid of the filibuster for other presidential appointments in 2013.
In 2020, the people voted to give the Democratic Party control of the Presidency, the House and the Senate. We should get rid of the filibuster so they can do what we elected them to do.
Then, in the midterm elections, we can judge our leaders not on their promises, but on their results.