Don’t Eliminate the Filibuster. Reform It.
Instead of using it always or never, let it be used sometimes and selectively.
|
The Senate’s power-sharing agreement, key to proceeding with the Biden Administration’s agenda, has finally been resolved after Mitch McConnell dropped his demand for a guarantee that Chuck Schumer won’t scrap the legislative filibuster.
Schumer knows the benefits to his caucus that come with the threat of eliminating the filibuster, and many prominent Democrats have called for the legislative filibuster go the way of the judicial filibuster, which was partially eliminated in 2013 by Democratic Sen. Harry Reid and then eliminated entirely in 2017 by McConnell.
Completely eliminating the legislative filibuster is a shortsighted policy that overlooks legitimate concerns about a majority party becoming a legislative steamroller, passing seismic bills on thin majorities in a sharply divided country.
Indeed, although the filibuster may have originated as an accident and was used routinely by Southern segregationists, the fact remains that a bipartisan group of 61 senators signed a letter in 2017 defending the filibuster as an important tool to preserve deliberation on legislation moving forward.
Rather than eliminating it altogether, Senate leadership should pursue filibuster reform. Such reform can take many shapes, but they all should rest on a simple principle: Instead of allowing the filibuster to be used always or never, let it be used sometimes and selectively.
The concept is straightforward: Cap the number of times a legislative filibuster can be invoked throughout a congressional term. Once that threshold has been reached, the chamber proceeds in pure majoritarian fashion.
Limiting the filibuster in this manner would force the minority bloc to recognize and articulate its truly important priorities while defending Senate affairs from the indiscriminate use of the filibuster. Perhaps a sliding scale is warranted—the larger the minority, the more times it could use the filibuster.
The mechanics of this reform can be worked out, but the practice of stymying legislation simply because it’s politically feasible should become an artifact of the polarized era elected officials hope to transcend. We should recognize the haphazard and obsessive use of the filibuster for what it truly is: anti-democratic.
We’ve seen how the filibuster can be a tool of bad-faith obstructionism, turning the world’s greatest deliberative body into a legislative graveyard where the minority can paralyze the progress for which a majority of the country has voted. As Alexander Hamilton observed in 1787 when commenting on a minority’s ability to impede a majority by requiring a supermajority to pass legislation, “what at first sight may seem a remedy, is, in reality, a poison.”
However, when rightly devised, the filibuster can be an instrument of good-faith governance, ensuring that—on the most contested issues of the day—narrow majorities cannot re-engineer society without consent from at least a portion of the minority. Such support also confers greater legitimacy to the resulting legislation by making it harder to mobilize an entire party’s campaign against it in a subsequent election while avoiding the cyclical, fickle whims of the majority.
Senate leadership can meet in the middle by protecting the need for broad consensus on the handful of issues most important to the minority while allowing the Senate to carry out its business for everything else.
Americans should be concerned when one branch of the government’s internal processes leave it wholly incapable of participating in governance. Hindering legislative action on commonplace functions is an exercise of raw political power that should have no place in a republic. It’s little wonder that executive power and administrative agencies are ascendant, political parties are weak, and the general public is frustrated with legislators who have no incentive to do anything but performative grandstanding because their institution is incapable of fulfilling its constitutional role.
Abolishing the filibuster outright would exacerbate the same structural dynamics that fuel the discontent we all feel so acutely. And it would almost certainly raise the stakes of every election by sentencing the minority to irrelevance and erasing any incentive for constructive bipartisanship.
But limiting the filibuster’s use to a few key issues each term could force honest conversations about what policies matter most and, in so doing, reorient our politics toward the checks and balances that encourage everyone to come to the table and have a stake in the outcome.
We could return to politics that, as Joe Biden said in his inaugural address, leads us to “join forces, stop the shouting, and lower the temperature.” That is the type of unity to which we should aspire, and filibuster reform is an important step toward just that.
Scott S. Boddery is an assistant professor of political science and public law at Gettysburg College and is an expert in judicial politics, court legitimacy, and institutional design.
Benjamin R. Pontz is a Fulbright postgraduate scholar at the University of Manchester where he researches governance and public policy in the context of institutional legitimacy.
Whether their suggestions for reform have merit is not the most important point to me with this essay. Bringing reform into the discussion is the main point to me. It seems the debate has been only looking at it from an either all or nothing approach (that is at least my impression from what the majority of media outlets have been reporting). maybe Boddery's and Pontz's ideas for reform are weak, but at least they are trying to raise an alternative to all or nothing. For that I am appreciative of the Dispatch for publishing this essay.
The current filibuster culture in the Senate (where nearly any bill that the minority does not intend to support is denied cloture) is both very recent and unsustainable. It empowers Congressional leadership while neutering the potential for any bipartisan compromise. And it gives incentives to both increase executive power and for the president to govern through pen-and-phone (which is of itself unhealthy for the country).
But there's a strong case to be made that the filibuster itself runs contrary to the principles that were used in crafting our government.
Hamilton's words in Federalist No. 22, cited by the authors, continue to expound *why* a supermajority standard (which the use of filibuster de facto imposes) is unhealthy for the country:
"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser . . . This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority." Federalist No. 22
James Madison shares similar sentiments in Federalist No. 58:
"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision . . . these considerations [possible benefits of a supermajority requirement] are outweighed by the inconveniences in the opposite scale.
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences . . ." Federalist No. 58
Both Hamilton and Madison were familiar with the (mal)functioning of the Congress under the Articles of Confederation, which required a supermajority of states approval for any action. Their words bear substantial weight because of this experience. Supermajority requirements for the Senate to pass a bill are found nowhere in the Constitution. We have adopted them, and are paying the price now. I'll personally be happy if they are left in the dustbin of history.