The rule allows only 40% of the Senators to delay or kill legislation. Does it protect America from tyranny of the majority, or is it a tool for partisan obstruction? Here’s some background, followed by a few opposing views published in the media, and this blog’s opinion…

BACKGROUND

There’s no mention of the Filibuster in the Constitution. However the tactic of using long speeches to delay legislation began in the very first session of the Senate. Senator William Maclay of Pennsylvania wrote in his diary in 1789, “the design of the Virginians . . . was to talk away the time, so that we could not get the bill passed.”[1] The term Filibuster—derived from the Spanish “filibusteros,” describing the pirates of the Caribbean Islands—started appearing in legislative debates in the 1850s.

By the late 1800s Filibuster abuse was becoming a problem. In 1917 President Woodrow Wilson urged Senators to adopt a rule (Rule 22) allowing members to invoke cloture and limit debate with a two-thirds majority. But Filibusters continued to be used to block legislation. They were particularly useful to southern Senators for denying civil rights legislation. It took a hundred years after the Civil War for the Senate to finally pass the Civil Rights Act of 1964.

In 1974 the Senate created a process called “reconciliation” that allows passage of certain budgets with a simple majority.  In 1975 it reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current 100 senators. The Senate also changed the Filibuster process, allowing members to only signal their intent to block legislation and not be physically present on the floor.

In 2013 Democrats voted to abolish Filibuster use from presidential appointments, including for lower court judges. Four years later, the Republicans did the same for Supreme Court Justices.

Lately the Republicans have threatened to use Filibusters to derail Democratic President Joe Biden’s agenda. A long opponent of Filibuster reform, Biden changed his tune in his first press conference and announced his readiness to curb “the abuse of even the filibuster rule.”[2]

CURRENT DEBATE

“We once backed using the filibuster. Now it must be reformed.” (By John Podesta and Wade Henderson, The Washington Post; August 13, 2021)[3]

Mr. Podesta, chairman of the Center for American Progress, and Mr. Henderson, chief executive of the Leadership Conference on Civil and Human Rights, wrote: “In the 1980s, the two of us worked together and, when no other tool was available, argued in support of using the filibuster to protect the independence of our federal courts and Americans’ individual liberties.

“The filibuster seemingly offered an important compromise — it would constrain the ability of the majority party to rush through legislation unilaterally, but it would then offer leverage to the minority party to influence the outcomes of debates. Although the filibuster had historically been used to block progress on civil rights, it also seemed to promote debate, so long as Senate minorities were working in good faith with the majority, finding honorable compromise where possible.

“With the pressures of near-constant electioneering, 24-hour news and increased political polarization, it has become clear that assessment no longer holds. Instead of promoting debate and compromise, or serving as a “cooling saucer” to the House’s hot tea, the filibuster has in recent years become a tool of the minority to block legislation on nearly every major issue facing our nation.”

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“Once Again, I’m Telling You That the Filibuster Doesn’t Actually Work.” (By Jamelle Bouie, columnist, The New York Times; August 10, 2021)[4]

“The case against filibuster reform is that the 60-vote requirement to end debate ensures consensus on any given piece of legislation. … Consensus in the Senate does not mean consensus among voters; it means consensus among partisan lawmakers in the context of equal state representation. It means that the bills that pass are those that lie outside of the partisan divide.

“This partisan divide shows up in Congress, where it is magnified by the structure of the Senate. Republicans may be in the national minority on climate change mitigation, but that minority is a majority in many of the smallest and most sparsely populated states, where it can elect enough senators to filibuster and kill any stand-alone climate bill with fewer than 60 votes in favor.

“A defender of existing Senate rules might say that this is fine, that the Senate is supposed to work according to compromise and deliberation and that partisan bills should fail as a result.

Setting aside the fact that compromise and deliberation can happen within a partisan majority — or that even a substantial bipartisan majority can fall to the filibuster, as happened in 2013 when a 54-vote bipartisan majority was not enough to pass universal background checks in the wake of the Sandy Hook massacre — it is simply not the case that the Senate categorically precludes partisan action.

“What we have instead of a system of forced consensus on all bills is a rule that allows partisan majorities to act in some cases and not in others, where the “other cases” encompass broad areas of policymaking and public concern.”

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“The Filibuster Helps Nobody, and That Means You.” (By Mike Solon and Bill Greene, The Wall Street Journal; June 20, 2021)[5]

Mr. Solon, former assistant to Senate Republican Leader Mitch McConnell, and Mr. Greene, former aide to Speaker John Boehner, wrote: “As Democrats clamor to end the Senate filibuster, they insist that the filibuster is an ancient relic that nobody needs, that serves nobody’s agenda and that improves nobody’s life. These political some-bodies are right—but not in the sense they imagine. When our Founding Fathers set up the Senate, it was precisely the needs, the agenda and the lives of millions of political nobodies that they meant to protect.

“What happens if the filibuster ends? Legislating, now slow and tedious, would become fast, furious and radical. Partisan laws would flood across our landscape, from the left and the right, making extreme lurches the norm.

“A simple-majority parliamentary government might evolve, spawning numerous parties and necessitating unstable coalition governments. Government with fractured parties would make compromise more difficult. Our current political system makes finding the lowest common political denominator possible. Coalition government would make it more complicated.

“The lives that political nobodies spend playing, praying, fishing, tailgating, reading, hunting, gardening, studying and caring for their children would be spent rallying, canvassing, picketing, lobbying, protesting, texting, posting, parading and, above all, shouting.

“But the filibuster doesn’t block legislation where a consensus exists, as evidenced by the existence of Social Security, Medicare, Medicaid and a minimum wage, all of which were passed when the cloture vote requirement was two-thirds, as compared with today’s three-fifths.

“The movement to end the filibuster is less about a Senate that doesn’t work than it is about a socialist agenda that doesn’t sell.”

The Senate filibuster is equally cruel but fair to Democrats and Republicans alike, blocking any flood of partisan legislation. It is why past Democratic and Republican House speakers, who agreed on little else, could concur that the Senate, not the opposition party, is the true enemy. The filibuster allows Americans to live free from constant political risk. With the filibuster, nobody in America needs to be good at politics to enjoy a good life.”

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“Progressives Would Miss the Filibuster.” (By Carl Levin and Richard Arenberg, The Wall Street Journal; March 29, 2021)[6]

Mr. Levin, former Democratic Senator from Michigan, and Mr. Arenberg, co-author of Defending the Filibuster, wrote: “Progressives are making a mistake by pushing Senate Democratic leaders to do away with the filibuster. If their agenda is worth fighting for—and it is—it’s worth the inconvenience involved in confronting the threat of the filibuster and forcing the obstructors to stand up and talk for days on the Senate floor. … Progressive programs are popular, and the way to advance them is by highlighting exactly who is standing in the way of progress.

“If Democrats steamroll the opposition and kill the filibuster unilaterally for legislative debate, the next Republican president with a congressional majority will be free to exploit their shortsightedness. Conservatives have long sought to weaken Social Security, Medicare, Medicaid, federal support for education and a long list of social programs.

“Mr. Trump enjoyed Republican majorities during his first two years in office and repeatedly demanded an end to the filibuster. As recently as four years ago, 33 Democrats joined 28 Republicans in a letter expressing opposition to killing the legislative filibuster.

“Squashing the filibuster would create havoc and even more gridlock. Blowing up the rules will exacerbate, not reduce, partisan polarization in the Senate. Standing up to Republican obstructionists and making them actually filibuster is the best way to achieve progressive goals.”

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“For Democracy to Stay, the Filibuster Must Go.” (By The New York Times Editorial Board; March 11, 2021)[7]

“This is a singular moment for American democracy, if Democrats are willing to seize it.

“Whatever grand principles have been used to sustain the filibuster over the years, it is clear as a matter of history, theory and practice that it vindicates none of them. If America is to be governed competently and fairly — if it is to be governed at all — the filibuster must go.

“The most compelling reason to keep the filibuster is its proponents’ argument that the rule prevents a tyranny of the majority in the Senate. … Partisan cooperation and debate should be at the heart of the legislative process, but there is little evidence that the filibuster facilitates either. The filibuster doesn’t require interparty compromise; it requires 60 votes. It says nothing about the diversity of the coalition required to pass legislation. It just substitutes 60 percent of the Senate for 51 percent as the threshold to pass most legislation. If the Senate was designed to be a place where both parties come together to deliberate and pass laws in the interest of the American people, the filibuster has turned it into the place where good legislation goes to die.

“Finally, the filibuster is a redundancy in a system that already includes multiple veto points and counter majoritarian tools, including a bicameral legislature, a Supreme Court and a presidential veto. The Senate itself protects minorities in its very design, which gives small states the same representation as large ones.

Another common defense of the filibuster, as Ms. Sinema said, is that the filibuster is crucial for permitting full debate on a bill. Again, reality shows otherwise. The filibuster doesn’t only fail to ensure extended debate on a bill; today it curtails the opportunity for any debate at all. A single senator can signal he or she intends to filibuster by typing an email and hitting send. No need to stand on the Senate floor to make your impassioned case.”

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THIS BLOG’S OPINION

Objections against the Filibuster are partisan and disingenuous. Take the argument of polarization, that the Filibuster has become a tool for obstruction because people are so divided. When the country is genuinely of two different minds on major issues—such as government spending, abortion, and police reform—it’s even more important that action is only taken when there’s wide support. Ramrodding majority’s agenda only worsens polarization. Persuasion of the minority, on the other hand, not only improves proposals but makes them more accepted across the country.

Similarly specious is the argument that the Senate doesn’t represent broad areas of public concern because of the chamber’s structure. This is a cry against the Senate’s equal representation, not the Filibuster. The New York Times argues that 60% votes don’t necessarily represent a diversity of opinion, but a super majority is certainly more inclusive than a simple majority. The paper calls for abolishing the Filibuster because there are too many veto points, but when all elected branches are held by the same party the Filibuster is the only protection against brazen majoritarianism.

The U.S. Senate is the world’s strongest second chamber in a national Legislature and is vital to the country’s constitutional structure. Its main role is to balance legislation. As George Washington described, “We pour legislation into the senatorial saucer to cool it.”[8] This helps the country avoid enacting majoritarian, demagogic, or otherwise misguided laws.  The Senate serves other crucial purposes beyond just keeping our House of Representatives from taking rash actions. It strengthens federalism; safeguards rural America; balances the Executive branch; decides on Presidential impeachments, and provides stability to the Legislature. The Founders organized the Senate with all these aims in mind.

The Senate adopted the Filibuster rule on its own. And despite frequent and loud protests that it establishes a “tyranny of the minority” when representatives of only 11% of the population in Congress can kill a bill, Senators have chosen to keep this extra-constitutional provision all these years.

The Filibuster is no hurdle when there is a crisis or when there is general consensus. When one party tries to force partisan change, however, the Senate minority can apply the brakes.

“The two-sided impact of the Filibuster—as both the source of gridlock and bipartisanship—is a nuance missed by those who decry gridlock and advocate bipartisanship,” wrote Congressman Lee Rawls.[9] “The big winners from abolishing the Filibuster would be the President and the political parties which would see their proposals sail through a majoritarian Senate. The American legislative machine would take on a more Parliamentary cast,” he wrote.

[1] https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm

[2] https://www.bbc.com/news/world-us-canada-56893296

[3] https://www.washingtonpost.com/opinions/2021/08/13/podesta-henderson-filibuster-reform/

[4] https://www.nytimes.com/2021/08/10/opinion/congress-infrastructure-senate-filibuster.html

[5] https://www.wsj.com/articles/the-filibuster-helps-nobody-and-that-means-you-11624226249

[6] https://www.wsj.com/articles/progressives-need-the-filibuster-11617039323?page=1

[7] https://www.nytimes.com/2021/03/11/opinion/us-filibuster-

[8] Gitelson, A. R. (2008). American Government. Boston: Houghton Mifflin Company. p.279

[9] Rawls, W. L. (2009). In Praise of Deadlock: How Partisan Struggle Makes Better Laws. Baltimore: The Johns Hopkins University Press. p.11 & 108