The Senate Filibuster Is Hollowing Out American Democracy
If Democrats win control of the Senate, allowing this archaic tradition to survive will make everything of significance the party hopes to accomplish virtually impossible.
This commentary is part of The Appeal’s collection of opinion and analysis.
Less than four years after Donald Trump’s victory in 2016 heralded, as a beaming Paul Ryan put it, the “dawn of a new unified Republican government,” America’s political landscape is nearly unrecognizable. Democratic presidential nominee Joe Biden leads Trump by nearly double digits in national polling, and his party is a virtual lock to maintain a comfortable majority in the House of Representatives.
The Senate is a different story. The prognosticators at FiveThirtyEight give Democrats a roughly three in four chance to wrest control of it from Republicans, but even if they succeed, they’ll probably do so only by a seat or two. In an era defined by a deeply unpopular president whose utter disinterest in governing has led to the deaths of more than 225,000 Americans, the best outcome for which Democrats can hope is, more or less, a tie.
Such a narrow majority would be of little use to a party eager to begin the tasks of democracy-preserving and planet-saving. This is because of the filibuster, a procedure that empowers senators to prevent most bills from going forward without the assent of three-fifths of the chamber—60 senators, not 50 or 51. This obstacle looms in the way of everything of significance on a potential Democratic majority’s agenda: expanding the Supreme Court, protecting voting rights, (someday) passing Medicare for All and climate change legislation, and so on. If Democrats indeed win, unless they make abolishing the filibuster their first order of business in January, whatever victories they celebrate in November will be fleeting at best.
The Democratic Party’s uphill battle is largely an accident of Senate history: Its two-votes-per-state structure was the product of an 18th-century compromise intended to persuade smaller states, dismayed by the prospect of larger states drowning them out in a legislature apportioned based on population, to ratify the Constitution nonetheless.
Some 230 years later—when half of this country’s 330 million residents live in just 143 of its more than 3,000 counties—the interests of less populous states are wildly overrepresented on Capitol Hill. A resident of Wyoming, with a population of less than 600,000, enjoys as much power in the Senate as a resident of California, with a population of more than 39 million. And because these rural states skew white and Republican, the party enjoys a semi-permanent structural advantage in the upper chamber, where the median state is about 6.6 percentage points more Republican than the country as a whole. The current Senate Democratic minority actually represents a majority of Americans. In 2018, the GOP picked up two seats even though their candidates earned less than 40 percent of the national vote.
Conservatives often argue that government is not necessarily supposed to be representative; America is a republic, a common refrain goes, not a democracy. As a descriptive matter, this slogan is flatly wrong. And it is essentially an assertion that the structure of this country’s government is fair and just because this country’s government has always been structured this way— as The New York Times’s Jamelle Bouie calls it, an attempt to “claim and co-opt the founding for right-wing politics,” and “naturalize political inequality and make it the proper order of things.” It is impossible to defend the modern Senate without also defending the proposition that some people should matter more than others.
The disproportionate influence that Republicans wield in the Senate is exacerbated by the power of the filibuster. In theory, the threat of a filibuster is supposed to foster compromise between otherwise reluctant factions. In practice, this procedural quirk enables a committed minority of lawmakers to veto anything they don’t like. (An ambitious cap-and-trade proposal, the DREAM Act, and a public health insurance option are all among its more recent victims.)
Together, the combination of filibuster-induced inertia and the GOP’s built-in head start make it far more difficult for Democrats to cobble together Senate majorities. When they do, the margin is very unlikely to be wide enough to overcome knee-jerk Republican intransigence.
Fortunately, this problem has a relatively uncomplicated fix. To defeat a filibuster, 60 senators must vote to invoke cloture, a procedure created at the behest of a frustrated President Woodrow Wilson during World War I. (After a particularly unproductive lawmaking session, he fumed that the Senate was “the only legislative body in the world which cannot act when its majority is ready for action,” rendering “the great government of the United States helpless and contemptible.”) Both the filibuster and cloture are Senate rules that appear nowhere in the Constitution. Through a series of procedural maneuvers known as the “nuclear option,” a simple majority of senators could lower the cloture threshold, effectively ridding themselves of the filibuster altogether.
Previous Senate majorities have already done so when they found it convenient: In 2013, with Republicans waging a scorched-earth campaign of advice-and-consent obstructionism against President Barack Obama, a Democratic Senate majority did away with the filibuster for non-Supreme Court judicial nominees and executive branch appointments. In 2017, Republicans abolished the filibuster for Supreme Court nominees, too, eventually enabling them to confirm three life-tenured justices who received a total of four Democratic votes.
Even before these more recent skirmishes, the filibuster’s parameters—much like, say, the Supreme Court’s size—were subject to strategic manipulations. Wilson’s cloture rule required the support of two-thirds of senators present and voting, but in 1975, a 62-senator Democratic caucus oversaw a successful effort to lower the threshold for most matters to (surprise!) three-fifths of the entire chamber. The filibuster for legislation is the last remaining theater of filibuster brinkmanship, but abolishing it would not be unprecedented or radical in any meaningful sense—it would be a continuation down a path that both parties began walking long ago.
Filibuster enthusiasts typically contend that its disappearance would plunge the chamber into unsavory, bare-knuckled partisan brawling. The Constitution’s framers wanted the Senate to be the thinking man’s legislative chamber—as Virginia delegate Edmund Randolph reportedly put it, to “restrain, if possible, the fury of democracy.” Senators were originally selected by state legislators, not voters, to insulate them from the whims of the unwashed continental masses. Getting rid of the filibuster-as-failsafe, the argument goes, would empower bare majorities to run roughshod over their opponents without consequence.
As incredible as it may seem, some people still cling to the fantasy that the Senate is defined by genteel debate and legislative comity. During President Trump’s impeachment trial, a huffy Chief Justice John Roberts scolded the parties for purported breaches of decorum before “the world’s greatest deliberative body.” In a Washington Post opinion essay in September, former Michigan senator Carl Levin and Brown University political science professor Richard A. Arenberg warned that filibuster abolition would “strip the Congress of the only procedural path to forcing negotiation and compromise,” and “exacerbate polarization by embracing one-party rule.”
All this assumes that negotiation or deliberation play any significant role in the modern lawmaking process. They do not. Rather than use the Senate’s de facto veto power to search out bipartisan consensus, the Republican Party has mastered the art of exploiting it to prevent Democrats from governing at all. Over the first two years of the Obama administration, when Democrats controlled the House, the Senate, and the White House, more than 400 bills passed the House and died in the Senate without even going up for debate, much less receiving a vote. Senate Minority Leader Mitch McConnell, who famously referred to making Obama a one-term president as his “single most important” goal, also used the filibuster to run a relentless blockade of nominees to the federal bench, eventually delivering to Trump a bumper crop of judicial vacancies to fill with conservative ideologues instead.
Democrats who pretend otherwise are fooling only themselves. There will be no “negotiations” around expanding the Supreme Court or protecting voting rights, because Republicans depend on voter suppression for their electoral relevance and on the conservative Court’s willingness to bless this effort at every turn. There will be no “compromise” on improving access to healthcare, because Republicans have spent the better part of a decade working diligently to tear this country’s already meager system apart. There will be no “deliberation” when it comes to passing a Green New Deal, because Republican politicians either do not believe climate change poses an existential threat to the planet, or they do, but they’re too craven to say it.
The filibuster’s obsolescence is a product of the obsolescence of the Senate itself. As I’ve written previously, the original rationales for the Senate’s structure are largely irrelevant in 2020, when voters elect senators directly and exit from the union is no longer a viable option. Its continued existence is a glaring exception to the supposedly sacrosanct principle of “one person, one vote,” and it functions as a system of legacy admissions preferences for the Republican Party. For all the attention paid to the dangers of gerrymandering legislative districts, thanks to the Senate, state borders now fulfill largely the same purpose.
Perhaps, once upon a time, the filibuster helped broker across-the-aisle cooperation. (Perhaps, once upon a time, across-the-aisle cooperation was a viable position within the Republican Party.) That era is plainly over. A countermajoritarian legislative chamber might be useful if its members were distributed evenly along an ideological spectrum, but not when one party has transformed itself into a cult of super-reactionary zealots for whom compromise is tantamount to cowardice. Any Senate nominally controlled by Democrats but hamstrung by Republicans will simply hold the government hostage for as long as Democrats allow it.
Democratic opponents of abolition worry that it will guarantee retribution when the tables inevitably turn. “Progressives … must ask themselves whether they would support doing so if Trump were reelected and Republicans kept control of the Senate,” Levin and Arenberg write. “We believe the question answers itself.”
Like most doomsday predictions, this one requires context. The legislative filibuster’s presence or absence matters most when the same party controls the presidency, House, and Senate. These partisan trifectas do not occur all that often—the 115th Congress, which coincided with Trump’s election, was only the third full unified Republican government since the end of the Eisenhower administration. (There have been eight unified Democratic governments.) When it comes to what matters here—actually enacting bills into law—Levin and Arenberg’s argument sort of treats the House, which is currently controlled by Democrats, as if it did not exist.
Pre-emptive mourning for the filibuster’s death also overstates its practical importance. Savvy senators, vexed by the fruitless search for 60 votes, have expertly learned to embed their top priorities within budget reconciliation bills instead. (Not all legislation is eligible for this treatment, but because budget reconciliation requires only a simple majority vote, it is an appealing vehicle for legislation that is.) Both the Republicans’ tax reform bill and their Affordable Care Act repeal attempts, for example, were creatures of budget reconciliation. It is hard to cast the filibuster as a vital bulwark against the menace of majority rule when both parties have happily blazed a trail around it.
The results of recent budget reconciliation fights indicate that a filibuster-free Senate would not necessarily be the tyranny-of-the-majority rubber stamp that majorities hope for and minorities fear. The Republican bid to repeal Obamacare did not fail because of a Senate filibuster; it failed because not even a majority of Senate Republicans were willing to take away health insurance from millions of people. In a hypothetical Democratic majority, the presence within the caucus of potential centrist defectors like Joe Manchin—a vocal filibuster supporter—is likely to make more fragile coalitions disintegrate in a hurry.
The prizes to be won by taking action could mitigate the potential danger in the future. As scary as the prospect of an unified Republican government hell-bent on revenge and unencumbered by a filibuster sounds, for example, it’s not clear how realistic running the table and enshrining a dystopian far-right agenda into law would be if a theoretical Democratic majority were able to pass laws to end partisan gerrymandering, protect voting rights, and expand a Supreme Court that has proven so hostile to them. Such an outcome might at last force this GOP to become something other than a refuge for bigotry and grievance politics; in the meantime, its leaders would be unable to abuse the filibuster to indefinitely sabotage Democratic efforts to govern.
The most compelling argument for abolishing the filibuster is a simple, practical one: If Republicans were to win the House, retain control of the Senate, and secure another term for Donald Trump in 2020, they would absolutely get rid of the filibuster when the moment became important enough. If the parties’ situations were reversed right now, McConnell would have the votes lined up before the new Congress was gaveled in. The filibuster is already hanging by a thread; the only remaining question is which party will cut it.
A rebalanced Supreme Court, a hypothetical John Lewis Voting Rights Restoration Act of 2021, single-payer healthcare (or even a public option), comprehensive climate change legislation, a federal jobs guarantee, meaningful criminal legal system reform, a humane immigration system motivated by something other than rank xenophobia—all of these things are of course dead on arrival in the Republican-controlled Senate. But they are also dead on arrival in any Democratic-controlled Senate in which extremist Republicans can rely on the filibuster as their personal handbrake on the policymaking process.
If Biden and the Democrats win this fall, they can either do away with this archaic tradition and accomplish what voters elected them to do, or pre-emptively surrender to Republicans, allowing a future GOP Senate majority to reap the spoils of war instead. As long as they allow the filibuster to survive, a progressive agenda is not a plan, but a wish list.
Jay Willis is a senior contributor at The Appeal.