Denuclearize the Filibuster

By Leo Duke

 

Attacks on voting rights. Daily mass-shootings. A crisis at the border with no solution in sight, an erosion of trust between law enforcement and the citizenry, and the impending catastrophic threat of climate change. Our nation is in the midst of unprecedented and near-intractable challenges, yet congressional policymakers have never had less of an appetite to work together to confront them.[mfn]One counterargument posits that gridlock is not as significant as some observers claim, and that many pressing legislative issues have already been ‘solved’ through congressional action. Therefore, the logic holds, legislative gridlock is a natural result when fewer, more controversial issues are the only ones left on the table. A 2014 study from Sarah Binder of the Brookings Institution counters this claim, however. The study, which attempted to create a metric that measures the number of “salient” legislative issues, found a gradual increase in the number of these issues Congress has faced over time, rather than any form of decrease.[/mfn] It is clear that there is a need for reform, as a democracy which cannot confront the problems plaguing its people is not only unresponsive, but entirely unsustainable. 

The debate around gridlock in Washington has largely centered around one procedural hurdle, which imposes a de-facto 60-vote supermajority requirement for Senate legislation: the filibuster. What was once a procedural oddity devised to empower minority voices to dissent in the chamber has now morphed into an arduous threshold to pass any significant legislation, a significant deviation from the purpose for which it was initially conceived.

This has led to the current situation, where seemingly intractable gridlock grips Washington, and the effective 60-vote requirement means that issues arousing even the slightest shred of controversy are complete and utter non-starters in the Senate. In an absurd system where consensus is all but impossible, the upper chamber has naturally resorted to absurd rules, creating policy primarily through abuse of budget reconciliation. Through this process, certain types of legislation can be passed with a simple majority vote, but what is and isn’t allowed is highly arbitrary: the non-partisan Senate parliamentarian must make a somewhat subjective determination as to how much the proposed law has to do with the budget. In legislating essentially by loophole, reconciliation results in a patchwork of non-permanent laws, jammed through on party lines, which cannot address the myriad of important issues facing our country which are non-budgetary. 

Naturally, given the filibuster’s issues, it has received its fair share of criticism, and arguments against the legislative practice have heated up recently. Especially with nationwide attacks on voting rights (which, being non-budgetary, cannot be addressed through reconciliation), progressive activists have pushed the Biden administration to weaken the procedural measure. Former President Barack Obama famously called the filibuster “a Jim Crow relic,” and columnist Ezra Klein has repeatedly made the argument that the 60-vote requirement is an existential threat to American governance.   

Still, there are justifiable concerns about lowering procedural guardrails in a hasty and partisan manner. While critics of the filibuster rightly point out that it hinders progress, President Biden has previously highlighted that “the filibuster has also saved a lot of bad things from happening too.” Indeed, while Democrats may want the filibuster rolled back to allow for passage of progressive reforms, the filibuster is also the only reason that the Affordable Care Act is still standing and that there is not a completed wall on the Southern Border. Just as removing the filibuster makes the passage of progressive legislation easier, it also eases the passage of conservative or potentially anti-democratic legislation; this is because reverting to a 51-vote requirement simply makes passing popular policy easier, regardless of what the policy would accomplish in practice.

Unfortunately, the debate around the filibuster is currently rife with reductionist rhetoric. It is frequently framed in the most extreme terms possible, with the options presented as a) maintain the status quo completely as is, or b) go with the ‘nuclear’ option of removing the protections of the filibuster entirely—no middle ground. However, it does not have to be this way. The history of the filibuster is a complicated one: it has been wielded both to hinder progress on civil rights, as the former President has suggested, but also to protect vital interests for which minority parties have advocated, as our current President has emphasized. The filibuster can have both good, normative qualities which moderate majoritarianism, while also serving as a burden to progress that hinders positive, popular reforms; both can be true simultaneously. Therefore, rather than center the debate on whether or not to entirely scrap the filibuster, we should discuss ways to reform the institution to realign the Senate with the Founders’ original intent. 

The Founders never intended for a procedural tactic to create the 60-vote supermajority requirement that prevails in Washington today. For nearly three decades after the nation’s founding, the Senate had rules which allowed a simple majority to close debate and force a vote on legislation. In 1806, they were changed, leading to the creation of the filibuster. 

Still, while the filibuster of this era allowed dissenters to express their grievances with legislation on the public record, filibustering members had to actively hold the floor in order to stall votes. This led to the marathon speeches typically associated with the filibuster in the popular imagination; however, these speeches alone were often not sufficient to stall vital legislation. One prominent example was Strom Thurmond’s record breaking 24-hour filibuster which, despite being an impressive feat of stamina, failed to block the civil rights legislation to which he was objecting. 

This system of allowing members to hold the floor to delay legislation and express dissent (but also requiring them to continuously hold the floor to do so), was made less relevant by Senate rule changes in 1975. These reforms not only created the 60-vote cloture rule we are all too familiar with today, but also allowed multiple bills to reach the floor simultaneously. In turn, this change spelled the end of the talking filibuster, reducing it from the main engine of dissent to an inconsequential, dramatic ploy primarily intended to get a member’s face on CSPAN. This is because, since the Senate could now move on to new legislation in the face of a filibuster, the theoretical debate on blocked legislation continues ad infinitum, even without the grandstanding of marathon speeches. The requirement for members to continue debate seems to have discouraged the use of the filibuster. From 1917 to 1970, the Senate voted to break filibusters a total of 49 times, or fewer than once a year. Since 2010, the average number of votes to end a filibuster has increased dramatically, now exceeding 80 per year.

The idea of reverting back to a talking filibuster is promising because it would require senators to actively hold the floor in order to successfully stall legislation. Rather than being able to simply threaten a filibuster that requires a 60-vote majority to overcome, senators would be limited by both the strength of their opposition to the measure as well as their own stamina. Additionally, members would be forced to articulate their objections to any legislation publicly in these marathon sessions, making efforts at obstruction more visible and allowing for more public accountability. Senator Joe Manchin (D-WV) has argued for filibuster reform in this vein, contending that it should be “more painful” to obstruct bills. Indeed, if the Senate is forced to remain on an issue indefinitely until it receives a vote, how much patience will the American people have with a small group of members who publicly and vocally stall popular reforms for days (or even weeks) on end? 

The potential for a talking filibuster to improve the effectiveness of the filibuster has led President Biden to come out in support of the change. Still, the talking filibuster is not necessarily a silver bullet, and it does not come without risks. Given how polarized the two parties are right now, it is entirely possible that certain politicians would use the talking filibuster primarily as an opportunity for media exposure and to rile up their base, leading to more grandstanding on the part of the opposing party; after all, if there’s one thing many politicians don’t have an issue with, it’s hearing themselves speak. Still, this reform would erect a formidable new obstacle to blocking legislation and would make efforts to obstruct proposals more visible, and thus, perhaps more costly. Plus, it is difficult to imagine any reform leading to more obstruction than we are seeing at the current moment; any promising change is at least worth a try. 

Additionally, President Biden has expressed a willingness to go further, should a new talking filibuster become yet another tool used to impede legislation en masse. There are a number of additional ideas to reform the institution which do not involve going ‘full-nuclear’ and scrapping the filibuster. For one, simple majority requirements could be set for certain types of legislation (say, voting rights, for example), while keeping the 60-vote requirement in place for most legislation. There is precedent for this change, as both Republicans and Democrats have made similar carve-outs in the past for votes pertaining to judicial nominees. Another oft-suggested reform would involve lowering the threshold for cloture votes. One especially interesting version of this proposal involves setting the threshold of cloture at the total size of the majority caucus. This would fight gridlock while also requiring bipartisan compromise should the majority party lose the support of even a single member. 

Still, whether the best option for reform is reverting to a talking filibuster or adopting another proposed solution, we must strike a balance between the desire for change and the necessity to protect institutions. We must unmoor ourselves from the all-or-nothing dichotomization that is currently taking place, as this is an area which requires significant nuance. Striking such a middle ground is of the utmost importance, as we must maintain the integrity of the nation’s ‘cooling saucer,’ while also addressing the need to reform a Senate that currently resembles something closer to an industrial freezer.

 

Title Image Credit: From “Mr. Smith Goes to Washington” (Columbia Pictures, 1939), via Vox.

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