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The Broader Moral Issue Behind the Filibuster

black-and-white photograph of U.S. congress in session

This week, the American Rescue Plan became law after being passed along party lines despite overwhelming bi-partisan support from state and local figures as well as voters (according to opinion polling). The massive stimulus measure has been taken as an indication that “the era of big government” is back, and indeed given the challenges faced with COVID-19, the threat of climate change, the urgent need to rebuild crumbling infrastructure, it isn’t particularly shocking that a significant share of voters now want government to be more proactive. It should be no surprise then that the Senate filibuster continues to be a lightning rod of controversy as more Democrats have called for reform. But is this just politics or are there more subtle moral concerns at stake when it comes to changing the filibuster?

Those who oppose getting rid of the filibuster tend to point to three general reasons to keep it. The first is that the filibuster is in keeping with the general philosophy behind the Constitution, specifically to prevent swift passage of laws. The second is that the filibuster protects minority rights. The third reason is more political-practical in nature; warning of the dangers of what would happen if the other side were able to do as they wish, and nothing could be done to stop it.

In response to the first reason, two important points need to be noted. In a 1995 article defending the filibuster, Bill Frenzel notes, “The Framers created our system based on their profound distrust of government […] Their intention was to prevent swift enactment of laws and to avoid satisfying the popular whimsy of each willful majority.” However even if slow government was the goal of the Constitution, it isn’t clear that the filibuster was a good means of accomplishing this. James Madison argued requiring more than majority support would reverse “the fundamental principle of free government,” while Alexander Hamilton argued that such requirements serve to “substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

What is more important, however, is that the Framers of the Constitution were influenced by 18th-century political philosophy and were responding to 18th-century problems. So, the question is whether such conditions still hold today, and if we should be bound by what the Founders wanted? The answer appears to be no, as even Thomas Jefferson argued that the Constitution should be revised and updated to meet the needs of new generations. While it is tempting to think about political philosophy in a-temporal terms as establishing stable institutions to protect an invariant set of fixed human rights, we might instead consider political institutions the instruments that allow the public to conduct its business.

In response to the second reason — the protection of minority rights — the question is always one of which minority and which rights we are talking about. If we are talking about the rights of a minority of citizens against the tyranny of the majority, then we already have a solution to that; it’s called the Bill of Rights. If we are talking about the rights of a minority of Senators, then we need to ask how far those rights should be extended. The right to review and debate legislation is important for any legislator in the minority, but whether there is a right for a minority of lawmakers to effectively veto legislation is another. Senator Raphael Warnock, for example, recently posed this very question, asking whether the minority rights of Senators should outweigh the voting rights of citizens.

If we put aside the first two reasons, as, by themselves, they aren’t reasons to keep the filibuster specifically, we must address the actual perceivable consequences of making changes to lawmaking policy. For example, Mitch McConnell recently warned of a “scorched earth Senate” where Republicans would use every rule at their disposal to halt the chamber and once returned to the majority would pass all manner of laws unacceptable to Democrats with “zero input” from them.

First, it is worth noting that most other legislative chambers do not have a filibuster rule like the Senate, despite hailing from nations which rank high on the democracy index. For example, prior to the 1990s the Legislative Assembly of Ontario was far more permissive about the length of speeches, allowing one member to tie up the legislature for weeks, culminating in a 17-hour long speech. The rules of the legislature were later amended to limit the time for members to speak, but even after this filibuster was eliminated, there were plenty of opportunities for obstruction. For example, one member was able to tie up the legislature for hours by introducing a bill whose title included every lake, river, and steam in the province. The title had to be read aloud by the member and the clerk.

Despite eliminating the chance to filibuster, the sky did not fall in Ontario. Just as McConnell has threatened to tie up the Senate using tactics like having bills be read aloud, legislators in Ontario resorted to new tactics and procedural moves to obstruct which were only permitted until they also became a nuisance. Yet, what follows from jurisdictions that allow for the easy passage of legislation based on a majority vote? Firstly, it means that administrations are far more able to enact the platforms they run on. Thus, voters more often see their political preferences be reflected in law.

But this also means that a newly elected government can always repeal and replace what came before far easier. This can be problematic because it creates greater instability and uncertainty. Sometimes this happens as a major piece of legislation can be repealed in short order by a new government who may choose their own policies. Good examples in Canada include a national childcare program that was almost enacted before a newly elected Conservative government cancelled it. In Ontario, the Liberal government’s cap and trade program was abolished quickly by a new Conservative administration.

While the swinging pendulum of political winners does mean that laws and programs can be enacted and repealed more frequently, it is rarely a free-for-all either. Certain programs, policies, or laws simply have too much public support to allow new governments to wipe the slate clean. For example, even when Conservative governments enjoy large majorities and could easily do so, you don’t see them repealing programs like public healthcare because the public would not stand for it.

So would a filibuster-less Senate be a disaster? Certainly McConnell is right that even if Democrats pass all the legislation they want, Republicans can just as easily repeal it next time they’re in power and further enact all sorts of reforms that would be objectionable to Democrats. However, in the long term the back-and-forth of major legislative reforms, repeals, and replacements would not be sustainable. It is in the public’s interest to have some degree of stability even if it takes voters a while to realize this. However, this kind of legislative experimentation might make it easier for the public to connect policies and ideas with real-life consequences. It’s one thing to vote Republican if you know little can get done, it is another thing to vote Republican if you know they can and will take away your healthcare. And if they do, your future voting preferences might change. In essence, eliminating the filibuster reveals how important it will be for voters to be more informed advocates when it comes to policy and to be less inclined to knee-jerk defenses of ideology.

Reforming the filibuster may not be merely a matter of exacerbating political problems, but rather it reveals and identifies a moral one. In a time where political reform is easier without the filibuster, what kind of changes to political culture should result? What are our responsibilities to be informed when we vote? Given that fellow citizens may not agree with all of our policies and may have the option to repeal them in the future, are we obligated to seek input from opponents in order to ensure that policies have enough support not to be undone after the next election? Would a scorched-earth approach with “zero input” from the other side ever be a good thing? In essence, are we not forced to ask how we can better “get along” with opposing voter blocks and what would that look like? Could this actually lead to more compromise and less polarization? And in our present political culture, where is the line drawn between pure obstruction and a meaningful challenge from the voting minority? And if some obstruction is welcome to protect the rights of the minority, how far should those rights go?

As I said, even if you eliminate the filibuster there are other tactics that can be used, just as they were in Ontario. The issue will not just go away. The debate for the nation is not whether a legislative tactic should stick around, but about the kind of political culture we should have.

Is the Filibuster Democratic?

bird's eye photograph of Maryland state senate chamber

A wide range of policy debates has already dominated the front lines of the 2020 Democratic Primary over proposals including Medicare for all, raising the national minimum wage, and mandating an increase on teachers’ salaries. However, another emerging policy proposal that has gained some attention in recent months is abolishing the use of the filibuster to block legislation in the senate.

Filibustering is a tactic frequently used by senators in which they can prolong debate over a bill almost indefinitely simply by holding the debate floor for as long as they can, thus effectively blocking the bill. A filibuster may be sustained even if the senator is discussing a topic other than the legislation at hand. For instance, in 2013 Sen. Ted Cruz held a filibuster against a version of the Affordable Care Act for 21 hours and 19 minutes by doing things such as reading bedtime stories to his two young daughters and announcing messages that had been sent to his Twitter account. The only formal way to stop a filibuster is for the senate to vote in favor of “cloture,” which requires a three-fifths supermajority vote (or 60 votes out of 100). A filibuster may also be stopped by more informal means if a senator must stop debating to use the bathroom or to sit down.

As a function of the senate, the filibuster is very well-established, making it a tradition that is rarely evaluated. However, new Democratic candidates are beginning to question whether or not the filibuster truly helps senators represent their constituents. Answering this question may require consideration of historical context.

The first effective filibuster was “discovered” in 1841 by Alabama Senator William R. King when he threatened an indefinite debate against Kentucky Senator Henry Clay over the creation of a Second Bank of the United States. Other senators realized there was no rule mandating a time limit for debate and sided with Senator King. Although it had been discovered, this did not make filibustering a common practice in the senate. Indeed, the cloture rule was not established until 1917 when a group of just 11 senators managed to kill a bill that would have allowed President Woodrow Wilson to arm merchant vessels in the face of unrestricted German aggression at the dawn of U.S. involvement in World War I. Even so, filibustering still did not establish itself until 1970 when the “two-track system” was implemented in the senate. The two-track system allows for two or more pieces of legislation to be on the senate floor simultaneously, with debate divided up throughout the day. This made filibustering much easier for senators to maintain, as they could filibuster one bill without halting Senate activity altogether. From this point forward, filibustering became increasingly more common in the U.S. Senate. However, from its history, it is clear that the filibuster is not a long-time tradition of the senate, but rather a loophole in senate rules that gained popularity as a strategy for obstruction of bills. Yet, many believe it to be an indispensable function of senate rules.

Many senators would argue that filibustering is necessary to adequately representing their states’ policy needs. Its primary purpose is to balance tyranny by the majority and preserve minority rights in the senate. Take the gun control debate as an example. Senate Democrats have long pursued reforms on gun laws through the senate but have had little to no success due to Republicans holding the senate majority and not allowing gun reform legislation to even reach the floor for a vote. Therefore, Democratic Senator Chris Murphy of Connecticut filibustered for 14 hours and 50 minutes in the wake of a mass shooting at Pulse nightclub in Orlando, Florida. The filibuster swayed Senate Majority Leader Mitch McConnell to hold two votes on gun reform: one proposal to expand background checks for potential gun owners, and another proposal to block suspected terrorists from purchasing guns. In this case, the senate minority was able to come together and prevent cloture on an issue that they could otherwise not have pursued due to senate rules. It is instances like these that lead many to call the filibuster the “Soul of the Senate” and praise the filibuster’s ability to encourage more in-depth debate on highly-contested issues. However, others take issue with the the way the filibuster is used.

While the filibuster balances the power of the senate majority, this function can also be limited. This is because the Senate Majority Leader must approve bills before they are brought to the floor, meaning that senators in the minority must beg the Senate Majority Leader to introduce a piece of legislation to the floor before they can even initiate a filibuster. In a highly polarized senate, where current Majority Leader McConnell controls the floor ruthlessly, even getting a filibuster started is extremely difficult. Despite this, there are still some who argue that the ability to filibuster gives the senate minority too much power. The primary reasoning behind this argument is that cloture and its 60-vote requirement are difficult to acquire, especially through rampant hyperpartisanship that currently exists in the senate. The possibility of a filibuster essentially sets a supermajority requirement on all major pieces of legislation, thus hindering congress’s productivity. The senate minority’s ability to filibuster also gives unpopular policy proposals more time over senate proceedings than they should have. A prime example of this was in 1964 when a small coalition of Southern Democrats filibustered the Civil Rights Act for 75 hours.

Beyond giving the senate minority too little or too much power, it is also alleged that the filibuster is applied unevenly between political parties. While filibustering does alternately inconvenience one side or the other depending on which party holds the senate, fundamental parts of Democrats’ and Republicans’ platforms allow the filibuster to disadvantage Democrats more in the long run. The modern Democratic party tends to push policy that introduces new or enhances existing government programs, while the Republican party leans on a platform of blocking these programs and cutting taxes. Republican policies of blocking social welfare and cutting taxes are more compatible with the budget reconciliation process than are Democratic policies. Because filibustering is not allowed in the budget reconciliation process under senate rules, Republicans can easily push their agenda through reconciliation, while Democrats are left to struggle for a 60-vote supermajority to advance most of their legislation.

Whether it should be retained or scrapped, what is most important is that the filibuster is under public scrutiny by high-profile politicians. As injustices in America’s legislative mechanisms become more apparent, public criticism of these mechanisms has also become more popular. Along with debating over the pros and cons of the filibuster and its implications for democracy, presidential candidates for 2020 are also entertaining drastic structural reforms such as doing away with the Electoral College, increasing the size of the Supreme Court, and offering statehood to Washington, D.C. and Puerto Rico. Whether people believe these reforms are operational or not, the public discussion around taking fundamental action to make the U.S. legislative process more democratic and representative is one that is well worth the nation’s effort.


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