For Democracy to Stay, the Filibuster Must Go
It is hard to imagine a more fitting job for Congress than for members to join together to pass a broadly popular law that makes democracy safer, stronger and more accessible to all Americans.
Last week, the House of Representatives passed H.R. 1. The bill, a similar version of which the House passed in 2019, is a comprehensive and desperately needed set of reforms that would strengthen voting rights and election security, ban partisan gerrymandering, reduce big money in politics and establish ethics codes for Supreme Court justices, the president and other executive branch officials.
The legislation has the support of at least 50 senators, plus the tiebreaking vote of Vice President Kamala Harris. President Biden is on board and ready to sign it. So what’s the problem? Majority support in the Senate isn’t enough. In the upper chamber, a supermajority of 60 votes is required to pass even the most middling piece of legislation. That requirement is not found in the Constitution; it’s because of the filibuster, a centuries-old parliamentary tool that has been transformed into a weapon for strangling functional government.
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. That’s the rationale of the two Democrats currently standing in the way of ending it, Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. They have been steadfast in defending the modern filibuster as part of what they assert is a longstanding Senate custom.
“It’s meant to protect what the Senate was designed to be,” Ms. Sinema said. “Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party.”
(It’s unlikely that any Republican senator will support getting rid of the filibuster today, even knowing that it would make legislating easier for them in the future, but because the filibuster is a Senate-created rule, that can be accomplished by a simple majority vote.)
Bipartisan 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.
That’s one reason the framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation. They had watched how such a requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist 22, “What at first sight may seem a remedy, is, in reality, a poison.” Supermajority requirements would serve “to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”
The filibuster arose only decades later. John C. Calhoun, a senator from South Carolina used it as a means to protect the interests of slavers like himself from a majority. From its beginnings through the middle of the 20th century, when segregationists like Senator Strom Thurmond, also of South Carolina, used the filibuster to try to kill multiple civil rights bills, the pattern has been clear: It has been used regularly by those who reject inclusive democracy.
The relevance of the history is that the pattern continues.
Finally, the filibuster is a redundancy in a system that already includes multiple veto points and countermajoritarian 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.
Reformers have suggested many ways to chip away at the filibuster without destroying it completely. One proposal would bar its use for legislation involving voting rights or other democratic expansions. Another would require the old-fashioned “talking” filibuster. A third would entail holding a series of cloture votes spaced three days apart, lowering the number of senators needed to end the filibuster each time. These are clever solutions, and Mr. Manchin has said he is open to at least one of them.
Even if there were a real debate on a bill, however, it should end at some point. That was clear more than a century ago, when the Senate had not yet established a rule to shut down a filibuster. As Henry Cabot Lodge, a Massachusetts senator, wrote, “If the courtesy of unlimited debate is granted it must carry with it the reciprocal courtesy of permitting a vote after due discussion. If this is not the case the system is impossible.”
If the political reforms in H.R. 1 are not undertaken at the federal level, Republican leaders will continue to entrench minority rule. That’s happening already in states like Wisconsin and North Carolina, where Republican-drawn maps give them large legislative majorities despite winning fewer votes statewide than Democrats. It’s happening in dozens of other states that have passed hundreds of voting restrictions and are pushing hundreds more, under the guise of protecting election security.
The Supreme Court should be blocking these measures and protecting the right to vote, but far too often under Chief Justice John Roberts, it’s done the opposite. In 2019 it refused to stop even the worst partisan gerrymanders, and in 2013 it struck down the heart of the Voting Rights Act, opening the door to a wave of Republican voter-suppression laws that continues to crash. That’s why federal law is the only solution.
There have also already been many revisions to the filibuster. In the 1970s, Congress created a loophole for spending and revenue bills to avoid the filibuster, allowing such legislation to pass with a simple majority — a process known as reconciliation. More recently, in 2013, Democrats eliminated the filibuster for nominations of lower-court federal judges and executive-branch officials. Four years later, Republicans eliminated it for Supreme Court justices, which allowed President Donald Trump to fill one-third of the high court’s bench with his picks.
The perverse result of all this is that it is now easier to block a piece of legislation, which could be repealed in the next Congress, than it is to block a federal judge seeking a lifetime appointment. Any intellectual justification for the filibuster has been gutted by the fact that it doesn’t apply anymore to many important issues before the Senate.
The point of H.R. 1 is not to help Democrats. It is to rebuild and reinforce the crumbling foundations of American self-government and abolish voter restrictions erected for explicitly partisan gain — a federal law that would protect all voters. If the choice is between saving the filibuster and saving democracy, it should be an easy call.