Why this Former Defender of the Filibuster Changed his Mind. It Has to Go.
As a member of a legislative body that does not have a filibuster, (but does have a secret dining room we’re not supposed to tell anyone about!), I have historically defended the idea of the filibuster. While my policy preferences are largely on the very progressive side, I am an institutionalist. I grew up respecting and admiring our democracy and all of the various anomalies and idiosyncrasies that made it function over the past 240 years.
This institutional reverence is why I have traditionally opposed most of the “reforms” based on the idea that lawmakers all suck and the institution is worthless. I opposed shrinking the legislature, cutting our pay, making us part-time and eliminating our staff. I’ve always believed that Representatives and Senators make (at least theoretically) enormously consequential, often life-and-death decisions. We should have the resources to gather and evaluate the information necessary to make those decisions intelligently. I’ve never been a fan of, for example, popping by to vote on what health-care our constituents have access to on the way to our other job selling suits at Macy’s or taking a deposition in a car-accident case.
My institutionalism also led me to defend the filibuster against criticism which came mostly from my side of the philosophical divide. In order to illustrate why I supported the filibuster, a brief detour into its history might be useful.
A filibuster is when a member of a legislative body debates an issue endlessly, with the intent to delay or kill the bill being considered. The term filibuster originally comes from Spanish word “Filibote ‘’ which described a type of sailboat. Its metamorphosis into it’s modern usage has something to do with pirates. That’s probably enough information about the word’s etymology to get you safely through most cocktail parties. The first actual filibuster appears to have occurred in the Roman Senate and was conducted in 60 BCE by Senator “Cato the Younger”. Presumably there was also a “Cato the Elder” (they wouldn’t have a Willie or a Sam), whose contributions to political discourse have been lost to history.
Fast-forwarding to American use of the filibuster, that was apparently the fault of Aaron Burr. When he wasn’t running around shooting people, he, as Thomas Jefferson’s Vice President, presided over the US Senate. In 1806 Burr argued that the Senate’s “previous question rule”, which allowed debate to be ended quickly, was antiquated and no longer necessary, leading to the abolition of this rule. Of course Burr’s prediction regarding the importance of ending Senate debate would prove no more prescient than his predictions about how history would remember someone who smote a major founder of the Republic over some negative attacks during the election of 1804 (I think they were about Hillary’s Emails).
While the rules were changed in a way to allow unlimited debate in 1806, the filibuster wasn’t used at all until 1841 on an obscure patronage issue. For the next 75 years it was rarely used at all, often with several years transpiring between filibusters. In 1917 the concept of “cloture” was incorporated into the Senate rules allowing 2/3rd of the Senate to end debate (reduced to 60% in 1975). Throughout the ensuing decades the filibuster was still hardly ever employed. Even including the highly contentious civil-rights battles of the 1950s and 60s cloture votes were only held 49 times in the 53 years from 1917–1970, less than once per year.
I supported the filibuster because I believed it strengthened the institution of the senate as well as the bonds between citizens that are necessary for a democracy to flourish. It forced compromise and negotiation. Filibusters were one of the important protections we provided for political minorities (Judicial Review of legislation is another) to ensure that there was no “tyranny of the majority”. Most filibusters failed, but they did allow a minority to pause the process and say “Hey, this is really important to us, you have to at least try to address our concerns”. The theory was that critical, controversial legislation which only passed because the opposition’s objections were at least considered and, to some extent incorporated into the final bill would have more buy-in across a broader spectrum of the body politic and would lead to more finality and acceptance of the new policy, even among those on the losing side.
Sadly, all of this has changed.
The filibuster is no longer a rare occurrence, reserved only for the most difficult and contention issues. Whereas there was an average of far less than one filibuster per year for the first 225 years of the Republic, there have been 263 filibusters this year alone. Now, you can’t even name a bridge without having 60 votes. The filibuster no longer gives the minority a chance to be heard on the most critical issues, it gives them an absolute veto on every issue (except for the budget, which is not subject to the filibuster). We no longer fear a tyranny of the majority, we now are living in a tyranny of the minority.
What is the result of all of this? The Senate is no longer just slow. It is no longer the “saucer through which we pour the hot coffee of legislation through”. It is now virtually inert.
Back when the filibuster was rare, there would be vigorous debate on important issues, but at the end of the day, the “adults” who led their respective caucuses would come together, negotiate and pass landmark legislation, including the Civil-Rights acts of 1957, 64 and 65. We saw the enactment of Social Security, Medicare and Medicaid, the creation of the EPA and OSHA, and the Americans with Disabilities Act. The list goes on and on. But since the filibuster has become the standard way we deal with legislation, what is the last major piece of legislation the Senate has passed? Probably the Affordable Care Act in 2010. But that is when the Democrats briefly held 60 seats, enough to pass cloture, something exceedingly rare in modern tribal politics.
The indisputable fact is that unless the Democrats, should they gain control, eliminate the filibuster (which, being a procedural rule, can be done with 51 votes) absolutely nothing of substance will happen. All of the heated debates we heard during the primary about whether Medicare-for-All is better than expanding Obamacare, or whether the Green New Deal is the best way to deal with climate change, or how obscene it is that the minimum wage hasn’t gone up in a dozen years will amount to nothing more than hot hair. It will turn our Congress into nothing more than a debating club with better make-up artists. If we are to ever solve actual problems again, the filibuster, as it is currently used, has to go.
The most common push-back against this reform is the “bite-you-in-the-ass” argument. “Someday” we are told, “the Republicans will again control the House, Senate and White House, and we will rue the day we eliminate the filibuster”. First, I don’t do a lot of rueing. I’m not a ruer. But beyond that, I don’t believe that this argument survives scrutiny.
The Republicans have already demonstrated that they will do whatever they have to in order to win in the moment. If the disparity in the treatment received by Merick Garland and Amy Coney Barrett doesn’t convince you, then you simply aren’t paying attention. If they gain control of the entire government someday and need to eliminate the filibuster to pass their agenda, they will not hesitate for a second. I can assure you that they won’t hold back out of gratitude to the Democrats for not doing the same back in 2021. In a perfect world, raw political power would not be the only thing that matters. But we do not live in that perfect world. And we want the people we fight for to know that we will fight every bit as hard for them as our opponents fight against them.
Further, I actually think that whatever policies a particular congress enacts, the public good is better served by allowing the majority party to actually govern. They should be able to largely do what they promised they would, and then face the voters two or four years later with an easy-to-evaluate record. Under the current system, where nothing of substance ever passed, or indeed, even voted on, any politician can spin things to look like they are sort of for something and sort of against it and the voters don’t have a clear sense of how to make the change they want to see happen.
I wasn’t wrong when I supported the filibuster in the past. But times, and the facts have changed. The realities that justified the filibuster no longer exist. And if we’re ever going to solve the huge problems that confront us now, we must end it the first minute we can.