Tuesday Talk*: Filibuster Or What?

There was a time when the Senate was known as the world’s greatest deliberative body, dignified and invariably courteous, unlike the 435 dirty groundlings who squabbled ceaselessly in the House of Representatives. And then it ended with partisan political paralysis, putting party above country and preferring games to compromise.

While the issue of the moment is voting legislation, the “fix” is the filibuster. An invented procedure, with a somewhat tainted history of changes from the number needed for cloture to the mechanics of reading the phonebook while praying for strong bladder control, it has a point. If a simple majority was sufficient to impose fundamental change on a nation, it would empower a majority of one to tyranny.

Should a simple majority be sufficient to impose significant controversial change upon a nation? On the one hand, a foundational premise of democracy is that majority rules. Win a presidency and Congress and, well, you get to do stuff. On the other hand, it’s not at all clear that winning a presidency and Congress means your every policy choice reflects the will of the majority. Policy is complicated, and people often vote based on one overarching issue while disagreeing, or at least not entirely supporting, others. There is also the possibility that one party prevails not because people voted for it, but against the other.

At the same time, invoking the filibuster has become a painless process. Mr. Smith has left Washington, and it’s no longer a test of how long one can clench their loins while their mouth moves. There are no limits to how many times it can be invoked. When hyper-partisanship means any bill that can be used as political cudgel can be killed without political risk, the risk of a tyranny of the minority becomes very real. They may lose the presidency and Congress, but they still win by filibuster. Is that democracy?

Filibuster reform is undeniably a double-edged sword. America’s political norms may degrade even further. Democrats might find that their proposals even accelerate the return of the GOP, at the cost of their own agenda. Yet if filibuster reform comes with a high price, it is a price worth paying. Biden’s plan has the potential to fix our deeply compromised elections, and to make Congress more functional in the long term. Most importantly, it would force Republicans to return to competing for votes, rather than suppressing them. The health of American democracy depends on it.

Of course, filibuster “reform” has grave potential to backfire. For reasons that can only be understood by the unduly passionate, there is a belief that the Democrats have the support of a majority of Americans on every policy cause they champion, and will persist in the majority in perpetuity. They fail to consider that voters who backed them to oust Darth Cheeto don’t necessarily support them, or don’t necessarily support their every policy. They fail to consider that they might lose, even though they can rationalize why federalism and the electoral college make them the majority even when they lose elections.

When the Senate was a debating society, and senators rose above the fray to put the best interests of a nation ahead of politics such that it was possible, even likely, that senators would break from party lines, the filibuster was less of a nuclear threat to progress. When the filibuster required physical involvement and action, there was a cost associated with its invocation such that it would only be employed in the most extreme circumstances. When the majority of the senate finds itself unable to enact any of its policies, and runs head first into the unmovable wall of the filibuster on every significant law, can a nation be governed?

Is it time to bust the filibuster, or is the filibuster the last bastion of defense for a very significant minority to prevent a fundamental “reimagining” of a nation? Are we doomed to congressional paralysis or will we be ruled by tyrants, whether in the majority or minority? Or are we not yet at the stage where this issue needs to be faced? Certainly, a party winning 60 seats in the Senate will be able to have its way, but is that the only answer to significant substantive legislation going forward?

*Tuesday Talk rules apply.

23 thoughts on “Tuesday Talk*: Filibuster Or What?

  1. Will J. Richardson

    Heinlein opined about the dangers of majoritarian legislative bodies in “The Moon is a Harsh Mistress”. Two quotes; the leader of the rebellion against earth, Professor de la Paz, is speaking to the Lunar Congress forming a new government.

    “What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.”

    “I note one proposal to make this Congress a two-house body. Excellent — the more impediments to legislation the better. But, instead of following tradition, I suggest one house of legislators, another whose single duty is to repeal laws. Let the legislators pass laws only with a two-thirds majority… while the repealers are able to cancel any law through a mere one-third minority. Preposterous? Think about it. If a bill is so poor that it cannot command two-thirds of your consents, is it not likely that it would make a poor law? And if a law is disliked by as many as one-third is it not likely that you would be better off without it?”

    1. Eliot J Clingman

      Heinlein being a practicing legislator with a deep empirical, historical and theoretical knowledge of how legislators function, he had very practical suggestions for writing a constitution. Errr, just kidding!

      The Kingdom of Poland had a constitution that highly resembles what you describe. Being completely deadlocked on all matters of politics and defense, Poland was partitioned three times (1772, 1793, 1795) by its kindly and solicitous neighboring states. After the last partition, the state of Poland ceased to exist.

      1. Rengit

        Let’s not be dishonest: in the fabled “Polish parliament” of which you speak, every single legislator had a complete veto, such that passing legislation required complete agreement among the entire legislature. That’s a far cry from one third or 40% of legislators having a veto.

        And for what it’s worth, that system of unanimous voting lasted for almost the entirety of the 17th Century, and most of the 18th until Poland cased to exist. And I’d be doubtful of suggesting the failure to embrace democratic majoritarianism was responsible for Poland’s downfall, when the countries that split up Poland, Russia and Prussia, were not democratic at all.

  2. Jake

    The purpose of the filibuster should be to give the minority an opportunity to sway the majority through principled debate, not to take congress hostage. The use of filibuster increased dramatically under McConnell and has achieved nothing -except stalling any business from being done. Suggesting it promotes legislative compromise ignores history.

    In the period since the adoption of the cloture rule in 1917, and the two-track reform in 1970, the Senate averaged fewer than 3 filibusters (measured by cloture motions filed) per two-year Congress. That average was up to 85 per Congress during the George W. Bush Administration and 158 per Congress during the Obama administration. Correspondingly, fewer bills were passed as filibuster numbers increased.

    If a Senator, particularly those representing a tiny minority of Americans living in the lowest GDP/highest federally dependents states, can block the will of the majority of Americans with a filibuster, I’m behind more rules to govern how.

    1. Kirk A Taylor

      Combined with one party making bills all or nothing vice being willing to compromise on some aspects and/or pass single item bills that get passed the things they agree on. Nothing in the Senate is working as designed and bypassing the filibuster will not fix it.

      1. Jake

        One problem at a time, Kirk. We’re talking about the filibuster today. To the best of my knowledge, nobody is suggesting we ‘bypass’ the filibuster. Whatever that means.

        1. Kirk A Taylor

          I was merely expanding on your one-sided analysis of the downsides of the filibuster.
          Also thought “bypassing” was a shorthand for your “more rules to govern how” about exercising the filibuster.
          To be more detailed, your description of the purpose of the filibuster and the causes for it failing assumes that the other side of the debate is willing to compromise or engage in principled debate. They are not.
          Neither side is blameless in this and your post, to me, seemed to imply that one side was. This is bipartisan fuckery with a long history.

  3. Bryan Burroughs

    If ever there were a valid use case for the filibuster, an attempted federal takeover of state elections procedures on a razor-thin 51-50 partisan vote would seem to be it.

  4. Quinn Martindale

    The filibuster, in its current form, is unworkable in a Senate with two parties as well as high levels of partisanship and party discipline. Our bicameral legislature and presidential veto already block representatives of a bare majority of voters from imposing its will. The written constitution and judicial review provide additional protection for minority rights. Parliamentary democracies in the UK and its Commonwealth lack equivalent protections without descending into tyranny.

  5. Pedantic Grammar Police

    “Filibuster reform is undeniably a double-edged sword.”

    Yes. Democrats and Republicans alike swing this sword mightily in every direction. Frequently it cuts holes in their cloak of respectability and they are exposed as hypocrites. Bloviating trough-feeders on both sides invoke God, justice, the constitution, mom and apple pie for and against the filibuster, shamelessly changing their positions as the makeup of the Senate changes. Few components of our system do a better job of showcasing the clueless, venal nature of our “representatives” in the house.

    People who should know better, on both sides, mindlessly parrot the garbage that spews from the mouths of their selected representatives. I expect that we will see some examples of that today.

  6. B. McLeod

    In the past, Democrats might have considered the risk that destroying the filibuster could be proximately followed by reversals in the mid-term elections that would bring them a very hard day. Today, they suffer from the seemingly irresistible impulse to “win” the manufactured, zero-sum game of the moment at all costs. It is a fanatical, caution-to-the-wind mentality that may well come around to bite them in the ass.

    1. abwman

      Since Herbert Hoover was President, the Democrats have failed to control one or more of the Presidency, the House, or the Senate on only four occasions (Bush II three times – 2001-2007; and Trump once – 2017-2019). That suggests that from a purely political standpoint, the approach they are taking is rational, not purely fanatical, because their chances of not having a blocking position are historically slim. It also may explain why the Democrats were willing to eliminate the filibuster for non-Supreme Court nominations when Harry Reid was majority leader.

  7. Elpey P.

    Parties are the problem, not the filibuster. The people demanding conformity to corrupted teams, instead of working for solutions that transcend that corruption, are the ones projecting the blame for their own failed paradigm onto scapegoats. Pretty soon partisans will demand that votes should be tabulated based on identity rather than personal opinion.

  8. Curtis

    By preventing action, the filibuster allows blowhards to advocate ideas that are popular only with their extreme partisans without worrying about consequences. If their agenda were enacted, they would lose the next election. Without a filibuster, the parties would be forced to advocate things that are popular with the majority not the wackos.

    With moderate power come moderate responsibility. With filibusters comes extremely irresponsible rhetoric. That is my simple answer to a complex problem and I imagine Mencken is laughing as I type.

    1. Rengit

      The Green New Deal was treated as a joke when it was proposed by the progressive fringe in 2019. Now that the Democrats have a bare majority in the Senate and the presidency, apparently incorporating a good chunk of it into the Build Back Better bill is supposed to be “moderate” and “popular”. A potential lesson: extremists can take over and hold their own party hostage, and when that party is it power it can most effectively be fought by empowering the minority party with tools to prevent passage of bills on a 50% plus one basis.

  9. Hunting Guy

    Maybe if we got rid of the 17th Amendment the Senate could go back to being a deliberative body and the filibuster could go back to its original use.

    Not gonna happen because there’s too much money involved.

  10. Dan

    There are doubtless good and principled arguments to abolish or modify the filibuster (as is the case with the Electoral College), but “it prevents us from accomplishing our agenda” isn’t one of them.

  11. Soup Sandwich

    If you want to revert to a classic on-the-podium filibuster, seems only fair the filibustering senator should be able to demand a bipartisan quorum actually sit in place to listen to it. The idea that 99 other senators get to tag team one motivated filibusterer isn’t testing the concept to it’s fullest. Let EVERYBODY who feels strongly about an issue suffer the pain of being present for a long period of time. If the guy on the podium has to win by personally standing in front of everybody, seems only right all of the people sleeping at their desks should have to win by actually sleeping at their desks.

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