Democrats tend to bring knives to gun fights, while Republicans show up with bazookas. We’re seeing that today in the debate over the U.S. Senate filibuster. This accidental, archaic anomaly has been useful at times to promote bipartisanship, back when such a thing was possible. But now it just empowers a minority party that’s out of step with America and obstructionist to the point of nihilism.
Enough with the hand-wringing. Democrats should eliminate the filibuster.
With the filibuster, most legislation can be brought to a halt by just 41 of the Senate’s 100 members, effectively giving the minority party veto power over what the majority party was elected to do. There’s nothing about the filibuster in the Constitution; the Senate, like the House, was designed to operate under simple majority rule on most issues. And contrary to the misty myth promoted today by the filibuster’s defenders, it wasn’t created to foster political compromise. It was created by what amounted to a clerical error.
As Brookings fellow Sarah A. Binder testified before senators more than a decade ago, the power to filibuster “was created by mistake” in 1806, while the Senate was updating its rules to remove redundancies. That housekeeping exercise resulted in the unintentional elimination of any process for cutting off debate. In other words, a senator could now stall a vote on legislation indefinitely by simply continuing to talk.
It was decades before anyone thought to use this accidental loophole in that cynical way. Senators in the political minority, though, eventually started exploiting it. Multiple attempts in the late 19th century to get rid of the filibuster were prevented by … the filibuster.
By the early 20th century, obstructionist filibusters had become such a problem that the Senate finally created a “cloture” rule that could stop them with a floor vote. But the filibuster’s defenders managed to negotiate a requirement that cloture votes must be a two-thirds supermajority (later changed to three-fifths), instead of a simple majority.
The filibuster was especially popular among southern senators in the mid-20th century as a way of stopping civil rights legislation.
Does any of this sound like a “treasured tradition” of “centuries-old wisdom” and “a key safeguard of American government”?
That’s how then-Senate Majority Leader Mitch McConnell described the filibuster in a New York Times op-ed in 2019. Now that he’s the minority leader, McConnell is fighting even harder to keep the filibuster in place, pointing out that he didn’t end it when he controlled the chamber. But he certainly abused and sidestepped it.
McConnell used the filibuster to repeatedly obstruct Barack Obama’s executive and judicial appointments — this after declaring bluntly that the “single most important thing we want to achieve is for President Obama to be a one-term president.” Frustrated Democrats finally responded in 2013 by scuttling the filibuster for executive and judicial appointments, though not for Supreme Court nominees.
McConnell bitterly condemned that move, but four years later, he took the more extreme step of making Supreme Court nominees exempt from the filibuster, too. This allowed him to fill the Supreme Court seat he’d effectively stolen from Obama by refusing to grant a hearing to court nominee Merrick Garland for almost the whole final year of Obama’s presidency.
McConnell also used a parliamentary exception to the filibuster to pass his budget-busting 2017 tax cut for the rich with only Republican votes. For someone who claims to cherish the filibuster, McConnell sure found ways to make sure he didn’t come under its thumb.
Some have suggested that a roundabout reform would be to restore the old rule that senators who want to filibuster a bill have to stand and talk the whole time. Think of the climactic scene from “Mr. Smith Goes to Washington,” with Jimmy Stewart standing for 25 hours to filibuster a corrupt appropriations bill. Rule changes in the 1970s allowed the minority party to simply declare a filibuster without speaking the whole time. Returning to the requirement of a “speaking filibuster,” some argue, would make the largely elderly and frail members of the Senate less apt to undertake it.
That may be true. If nothing else, it would be entertaining to watch. But how, exactly, does a display of physical stamina lend legitimacy to a political argument? If anything, the very notion just highlights how fundamentally absurd the filibuster is and always has been.
Today’s GOP already benefits mightily from anti-majoritarian systems like the Electoral College — which has given Republicans two recent presidencies despite Democratic opponents winning more votes — and the Senate itself, where 50 Democratic senators represent some 41 million more Americans than do the 50 Republican senators. Add in the frenzied court-stacking of the past four years and it’s clear why, on issues like health care, guns, abortion, the environment, taxes and more, the GOP has managed to steer public policy in directions that majorities of Americans don’t want it to go.
President Joe Biden and a Democratic Congress may have as little as two years to unwind some of that damage. But it’s not going to happen as long as McConnell & Co. control this unearned off-switch. Democrats should sheathe their knives, already, and nuke the filibuster.