Much of America is built on myths and hyperbole. Some self-proclaimed “patriots” say America is the greatest country in the world, while deliberately ignoring our mistakes in domestic and foreign policy both past and present. I often hear that the framers of the constitution bequeathed to us with the greatest form of government ever conceived by man, despite famous founders like Benjamin Franklin indicating that though the constitution was a good and stable foundation, it absolutely wasn’t perfect.
These are just a few examples of American myth making. They tend to serve an important function for the many political actors out there. They are utilized for the unstated goal of maintaining the status quo. If America is the greatest country on earth, then why should we change anything? If the constitution truly is the greatest gift to man since Moses coming down from Mount Sinai, then why would we need to update the constitution to meet the needs of 21st century America?
Some of the most pernicious myths today surround the purpose of the Senate filibuster, an arcane procedure where one or a minority of senators can call for endless debate on a piece of legislation. A filibuster can only be ended by a supermajority vote, which today is 60 senators. Its proponents claim that it promotes debate, bipartisanship, and protects the rights of the minority in the senate.
In today’s senate, Joe Manchin and Kyrsten Sinema are two of the filibusters most outspoken defenders. Sinema has gone even further, stating that she would like to rebuild the filibuster so that it is once again the threshold for all Senate business, including Supreme Court and lower court nominations. But I think they misunderstand the framers’ intentions for the Senate, the true history of the filibuster, and the pernicious way it is used today. I’m not the first to write about ending the filibuster, and I’m sure I won’t be the last. But it is the most important issue to deal with if we want anything to get done. Progress on every important issue runs through the United States Senate. As long as the filibuster exists, bills will be watered down to the point uselessness or killed altogether.
To get rid of the procedure, Joe Manchin and Kyrsten Sinema are two key Democrats that would need to get on board. All 50 Democrats plus Kamala Harris equals a dry goodbye to the filibuster. I hope to make clear that Manchin and Sinema are protecting the filibuster based on myths.
The Framers would’ve hated the filibuster
I’ve been reading Adam Jentleson’s new book Kill Switch where he discusses the history of the filibuster and how it has crippled today’s Senate. In the book, Jentleson makes a persuasive case that the Framers were in broad agreement that they did not want supermajorities ruling with chamber. Everything should be adopted based on a majority. A supermajority would not promote unanimity or consensus; it would enable obstruction and endless “debate”. They had tried this type of unanimous governing structure before—under the Articles of Confederation—and it was a complete disaster. Everything from taxes to interstate commerce required supermajority support from the states for passage.
In Federalist 22, Alexander Hamilton lays out the view most framers had of supermajorities:
What at first sight may seem a remedy, is, in reality, a poison. 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.
He goes on to say:
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 it’s 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 [emphasis added], to the regular deliberations and decisions of a respectable majority.
James Madison, in Federalist 58 makes a similar case:
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
The Framers of the constitution would be appalled at today’s filibuster. They believed in the protection of the minority in the Senate, that is undeniable. But they didn’t believe that a senate minority had a veto on everything.
Like most things, it was Aaron Burr’s fault
The filibuster came about completely by accident.
Vice-President Aaron Burr in 1806—then President of the Senate and its presiding officer—suggested that the Senate clean up its rule book. In those early days, the Senate and the House both operated on the “previous question” motion: the tool majorities used to cut off debate and proceed to a vote. When Burr suggested eliminating the rule and the Senate heeded his advice, they abolished the one tool the Senate had to close debate. The filibuster was created out of a loophole from this one mistake. It would take years of persistent innovation from people like John C. Calhoun to push the filibuster closer to how we know it today. But for much of American history, it was rarely used.
What was it used for
It was used quite infrequently, but when it was with some consistency, it often targeted civil rights. Anti-lynching laws, anti-poll taxes, and general civil rights legislation from the early to mid 20th century all failed due to the filibuster. It was never used to promote debate on these bills or improve them. It was used to kill them. Barack Obama was right when he called the filibuster a Jim Crow relic.
Earlier quotes from Hamilton and Madison stun me with their prescient warnings. A supermajority threshold allowed a minority of senators to ensure and prolong the oppression of Black Americans in the South. A filibuster is not used to promote bipartisanship, it is used to stop things the minority doesn’t want from happening.
Its use today
Filibuster reform was always elusive, as senate leaders who sought it would always be— you guessed it—filibustered. It wasn’t until 1917 that the Senate finally adopted the rule used in today’s senate to end debate: cloture.
You’ve probably heard this term before, but basically it is the “previous motion” question from the original senate rules with one fatal twist. In order to pass the cloture rule in 1917, reformers compromised. It would take a ⅔ majority to end debate, not a simple majority like in the early Senate, before Aaron Burr came and ruined everything again. Eventually, that bar was lowered to 60 votes, the threshold we have today.
The filibuster’s use has grown exponentially, with the last ten years seeing an unbelievable increase. In 1981-1982, a cloture motion to end debate was filed 31 times and voted on 27 times. Fast forward to 2019-2020 and you’ll see cloture filed 328 times and voted on 298 times. On top of all of this, the filibuster doesn’t even require a Mr. Smith Goes to Washington type oration, where the speaker holds the floor until complete collapse from exhaustion. All it takes is one senator or group of senators letting leadership know they intend to seek the 60 vote threshold and nothing passes, without anything remotely resembling a debate.
The filibuster proponents have it backwards
Kyrsten Sinema and Joe Manchin have it backwards. The filibuster does not promote bipartisanship, it entices the minority party to stymie the majority. And when you look at our current political incentives, it makes perfect sense for them to do so.
Elections are much more competitive now compared with most of American history. Normally, the party in power would expect to stay there for decades. Today, the minority party could become the majority in every election cycle.
NYTimes Op-Ed columnist Ezra Klein wrote a great analogy highlighting this dynamic:
Imagine you work in an office where your boss, who you think is a jerk, needs your help to finish his projects. If you help him, he keeps his job and maybe even gets a promotion — and, even worse, you and your friends may lose your jobs. If you refuse to help him, you become his boss, and he may get fired. Now add in a deep dose of disagreement — you hate his projects, and believe them to be bad for the company and even the world — and a bunch of colleagues who also hate your boss and will be mad at you if you help him. Think you’ll help him under those conditions?
Why would the minority want to pass legislation that the majority party could not only run on as an accomplishment, but could point to its bipartisan passage and say “Look! Even our opponents think this was a good idea!”
In these conditions, the exponential increase in the use of the filibuster makes sense. The party out of power wants to get back into power, so they use the filibuster not only to obstruct the majority party, but to show the country that whatever the majority does get to pass won’t be done with the consent of the other side. In a country where Americans want to see both sides working together, a lack of bipartisanship can be a sharp attack on any piece of legislation.
End the filibuster
In an interview Adam Jentlson gave with Ezra Klein, he makes the case that far from helping to promote bipartisanship, the filibuster hampers it. Bills that should pass with 55+ votes don’t. It’s not because there isn’t majority support for the bill, it’s because a minority of senators use a rule that was created by mistake, honed by Southern Democrats, and is anathema to the framers intentions to stop it from even being voted on.
If the filibuster was eliminated, more bipartisan legislation would get through the senate. It wouldn’t necessarily be 60+ votes, but you would see immigration reform, climate change proposals, common-sense gun legislation pass with at least 55 votes. You might see more than that, because senators that can’t fall back on the filibuster might hop on board once the bill’s passage is inevitable, especially if the bill is popular. Even if there wasn’t an all-aboard-the-train effect, a world without the filibuster would see important issues finally being addressed.
It’s time to put it on the ash heap of history. I just hope Sinema and Manchin figure this out soon.