“What at first may seem a remedy, is, in reality, a poison,” wrote Alexander Hamilton on the prospect of requiring supermajority rule. He argued that if the country couldn’t govern through majority rule, it would lead to “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
While the filibuster didn’t come into being until the 1800s, the founders considered the possibility of requiring more than a simple majority rule and rejected it. They recognized that while it creates a feeling of safety in preserving today’s status quo, this safety is nothing but an illusion. The far greater danger is not action, but inaction. As Hamilton wrote,
“When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.”
The filibuster is often billed as a means of driving bipartisan action and in an ideal situation, it would do this. But the primary result hasn’t been improved cooperation — it’s been complete inaction on critical issues. With the country split along party lines, there’s a major gap between 51 and 60 votes in the Senate. By requiring 60 votes to pass major legislation, it creates a weapon for the minority to preserve today’s status quo and hold back progress. And more than anything, that’s exactly what it’s been used for throughout history.
In the 1840s, Senator John Calhoun shepherded the rule into existence. A leading advocate for slavery, he used it to delay anti-slavery legislation and promote the Confederacy. Over the following century, conservatives repeatedly used the filibuster to block civil rights legislation, including bills prohibiting poll taxes, those prohibiting employment, housing, and voting discrimination, and one particularly infuriating example where they blocked an anti-lynching law. In more recent years, conservatives used the filibuster to prevent legislative action on gun control, climate change, campaign finance, Wall Street regulation, immigration, and gender pay equality.
It’s worth noting that liberals have also benefited from the filibuster. Throughout the Trump administration, the Senate blocked funding for the border wall and inadequate police reform and coronavirus relief packages. And under George W. Bush, a Democratic minority blocked efforts to restrict the reproductive rights of women and open the Arctic National Wildlife Refuge to oil drilling. However, when you look at both situations, conservatives benefit far more from liberals from the filibuster.
This makes sense when you look at the priorities of each party. Liberals and progressives tend to favor change and increasing Government’s role. Conservative priorities are more aligned to preserving the status quo.
Unfortunately, those who benefit the least seem to be the American people.
Americans Aren’t Happy with Congress.
Some may remember back in 2013, when the federal government was on the verge of a shutdown due to the lack of an approved budget, the topic of funding Obamacare became a fierce debate.
In response to this urgent issue, with the threat of many people’s jobs on the line, our elected officials convened and Ted Cruz decided to read Green Eggs and Ham to the Senate floor. I’m guessing that most of the other Senators were already familiar with the story, but for anyone that wasn’t, they no doubt appreciated the exposure to Ted Cruz’s literary influences.
In the moment of action, Ted Cruz decided that it was better to demonstrate his unwillingness to compromise than work together with his fellow Senators. He felt his constituents would rather see him waste everyone’s time than work on solving the very real problem of responsibly funding the government.
Shortly afterwards, the Congressional approval rating dropped to an all-time low of 9%. Nine percent! More people liked Howard the Duck and Gigli than that. To score that low, it almost seems as if you’re trying to displease people.
In the absence of Ted Cruz narration, Congressional approval ratings have climbed to 35%, the highest level since the start of Obama’s first term more than a decade ago. Yet the same problems remain. Congressional gridlock preserves the status quo and prevents necessary action. The filibuster continues to hinder our legislative process and protect those with privilege at the expense of those without.
This Wasn’t the Vision of Our Founders.
Proponents of the filibuster will tell you that it was part of the Founders vision. Yet it’s not mentioned anywhere in the U.S. Constitution and the evidence supports a vision of simple majority rule. Instead, the filibuster seems less the intent of conscious decisions and more the product of bureaucratic loopholes and precedents.
Until 1806, a Senate rule allowed a simple majority to end debate on a bill and move it to a vote. A routine cleanup of the rulebook resulted in the loss of this rule and created a loophole for endless debate. No one seemed to notice the loss — the first filibuster didn’t take place for more than 30 years.
In the 1850s, the filibuster became synonymous with lengthy speeches to delay a vote. It still wasn’t frequently used since senators had to actually stand on the Senate floor and speak to enact it. Few people can do this indefinitely, so votes continued to move forward and while annoying, it rarely led to the complete standstill we see today.
In 1917, amidst debate over whether the United States should take part in World War I, a group of 11 senators filibustered a bill to arm American merchant ships and protect them from German attacks. President Woodrow Wilson responded that the “Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.” In response, the Senate implemented a rule that a supermajority of 67 senators could cut off debate and proceed to a final vote. In 1975, the Senate reduced the supermajority requirement to 60 votes.
Around this same time, the Senate revised their method of tracking legislation to allow more than one bill to be pending on the floor simultaneously. This allowed the Senate to move on to other business while they “debated” a filibustered item indefinitely. Senators no longer had to worry about holding up all other business through endless debate. They no longer had to worry about occupying the Senate floor and continuing an active debate. They could simply announce their intent to filibuster, and unless the bill has 60 votes in support, the Senate moved on to other business.
So we went from a founding vision of majority rule to a situation where any senator can send an email to completely derail the legislative process. It’s no wonder that public approval of Congress is so low.
It’s Not Living Up to Its Purpose.
“At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation,” wrote Joe Biden as a Senator in 2005. “It does not mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That is what it is about, engendering compromise and moderation.”
Then-Senator Biden’s words are inspiring, and if the filibuster was driving debate and compromise, it would seem like a worthwhile tool. Yet this doesn’t seem to be the case. It hasn’t been a tool for moderation. It’s been a weapon for inaction.
Raising a filibuster no longer initiates a debate. It simply obstructs the legislative process and hinders our ability to move forward with progressive policy. As Hamilton foresaw, it’s led to “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
A common rule of organizations is that the temporary quickly becomes the permanent. One way to counteract this tendency is to periodically ask ourselves, “If we didn’t already have this in place, would we start it now?”
If we didn’t already have the filibuster in place, would we enact it now?
If the best indicator of future behavior is past performance, there’s little reason to believe that the filibuster will deliver better results going forward. It’s consistently benefitted conservatives more than liberals. It’s consistently allowed reactionary forces to limit progress, preserve the status quo, and protect those with privilege at the expense of those without it.
There’s little reason to believe that this will change. There’s little reason to believe that it will help the country move forward and address the significant challenges facing us today.
We Need a Government that Can Act.
Democrats now have the opportunity to pursue reform that this country desperately needs. They have the chance to implement critical voting rights laws, counteract climate change, and take steps to reverse our growing income inequality.
I hope that Biden’s approach of bipartisan cooperation will prove to be productive. But if not, Democrats need to decide whether they’re willing to get rid of this archaic practice or accept their inability to deliver on their promises.
And Americans will notice. They elected the Democratic Party based on the promise of change. They’ll hold them accountable to that expectation in 2022.
I hope that the Democrats can drive the reforms they need through bipartisanship and compromise. But if not, I hope they’re willing to do what’s necessary to deliver them regardless.
More than anything, we need a government that can act.