As the majority in the Senate shifted, so too have the arguments against the filibuster. When it could be used to block the Republican majority, it was critical to democracy. Now that it can be used to block the Democratic majority, it must be eliminated to save democracy. No surprise thus far.
What it accomplishes is to provide a way for the minority party in the Senate to require a 60-vote supermajority. While this seems, on its face, undemocratic, there are strong arguments in its favor. It prevents a one-vote majority from establishing a tyranny, where it can make monumental changes that impact everyone even though it holds essentially no greater authority than the opposition. If a change is that significant, should there not be at least a supermajority in support of it? After all, Congress is supposed to reflect the will of the people, not half the people plus one at the expense of the other half minus one.
But when the filibuster was born, it came at a cost, as explained by Erwin Chemerinsky and Burt Neuborne.
In the beginning, from 1789 to 1806, debate in the Senate could be ended at any time by majority vote. In 1806, the Senate abolished that rule, leaving no way to cut off debate. This decision gave birth to the filibuster to delay or block legislative action. This involved a senator holding the floor continuously, as Mr. Smith did (not easy), or to act in carefully choreographed relays with like-minded colleagues (also not easy) and prevent a vote on the merits.
It didn’t matter what the senator said. She could read from the telephone book, for all it mattered. But it required the senator(s) to hold the floor, keep talking and have enough of their brethren in the chamber throughout to keep it alive. Then it changed, from a difficult and extremely burdensome gambit to parlor trick.
Beginning in 1975, though, the original speaking filibuster was transformed into the modern version. First, Southern senators agreed to confine the filibuster to a short period in the morning session, allowing the Senate to move on to other business in the afternoon. Then they agreed to a reduction of the cloture number to a fixed 60 votes, from two-thirds present and voting, or 67 votes if the entire Senate was present.
What was gained in time was lost in the dynamic of the filibuster. Before, if someone wanted to filibuster, they, their party and the Senate as a whole, paid a heavy price. This meant that you didn’t filibuster except to prevent the most egregious laws from being enacted. Without this heavy cost, both on the person and the nation, it could be pulled out of the bag of tricks at leisure, used to stymie the majority at will.
Of course, it wasn’t, but only because of comity. There was still the business of the nation to attend to, and the threat of mutually assured destruction hung over both majority and minority if the latter just filibustered everything. There remained a pressure to get along to some extent, but there also remained a painless filibuster to block anything controversial or significant. Bear in mind, that doesn’t mean it shouldn’t be used to block controversial or significant laws, but only when they were so anathema to such a significant portion of the minority party that they were intolerable.
The result was an explosion in the number of filibusters, changing a relatively rare device to protect the conscience of the minority on a few deeply felt issues to a de facto supermajority rule requiring proponents of virtually all legislation to secure 60 affirmative Senate votes before it can be passed.
By changing the dynamic of the filibuster, making it largely cost-free to use, the only remaining limiting factor was that the Senate, and hence the Congress, would end up paralyzed and useless. Some might think this a good thing, but that’s a different concern. Like it or not, there is a need for a viable legislative branch of government or the policy-making will happen in the other branches, neither of which is designed to do so.
If the filibuster was restored to its old, burdensome, place of senators talking ad nauseam, holding up any other action by the chamber just as it holds up the speaker’s bodily functions, it would be far more likely to only be used for the most extreme, most dreaded, most destructive measures. And that’s all it should be used for.
Much like public sector collective bargaining, it’s a matter of the dynamic. Since public employees can’t strike, negotiate for rights that impair the public’s rights and interest, and public employers can’t lock them out, and government doesn’t function on a profit motive or have to pay the cost of whatever it negotiates since the money comes from the taxpayer, often down the road a few years after the negotiating party has moved on to higher office, the dynamic of collective bargaining fails. Without the dynamic, it’s cost free. It’s the dynamic, the costs imposed by the choices made, that make it work, and those costs don’t exist in the public sector.
The dynamic that makes the filibuster work has been lost. For the minority party to stymie the majority, it has to suffer. If it’s unwilling to suffer, then it’s not important enough to require the supermajority to invoke cloture, to end the filibuster. And if the majority doesn’t suffer, both by having to hear their colleagues talk ad infinitum as well as being prevented from all other business until the filibuster ends, there is no reason for the majority to make the effort to reach consensus, to try to find common ground with the other half a nation that doesn’t believe their monumental shift to be best solution.
But what about majority rules? There can be a tyranny of the majority or a tyranny of the minority. Or there can be no tyranny at all, if we work to achieve goals using means that we can all live with. Yes, it means that bold, swift change will be hard to achieve if only one party supports it, but if we return to the speaking filibuster, it will mean that it will only be blocked if it’s really worth it.