It’s a safe guess that most Americans by now have heard the word “filibuster”— if you’ve been following the news out of Washington the past week, you’ve heard it a lot— but it’s an equally safe guess that while most have heard it, most couldn’t define it.
If that’s you, I won’t bog you down with chapter and verse. It’s enough to say, thanks to this timeworn rule in the United States Senate, if the minority party wants to erect a roadblock to the majority party’s objectives, it can. It can insist that for a measure to pass, it must muster a “super majority” of three-fifths of our senators’ votes— which in modern times means 60, rather than a simple 51. In other words, it can invoke the filibuster.
As of this month of course, that minority is the Republicans, the majority (thanks to the tie-breaking vote of the vice president) is the Democrats. But make no mistake, Democrats have used the filibuster as much in the past to gum up the goals of Republicans as Republicans have used it to derail Democrats.
The filibuster debate is all over the news today because of this question: if the new Republican minority is going to be as obstructive in the future as it has been in the recent past, and effectively block much of the major legislation President Biden promised the American people when he ran, should the majority take away the minority’s best tool by taking out the filibuster?
A little history never hurts.
As David Leonhardt noted in The New York Times, our Founding Fathers “protected minority rights by creating a government— with a president, two legislative chambers and a judiciary— in which making a law even with simple majorities was onerous.”
Then the filibuster was founded to make it even more onerous. It would prevent tyranny of the majority by making it harder to steamroll an agenda into law. But its practical upshot today is, it doesn’t so much foil the tyranny of the majority as it fortifies the tyranny of the minority.
Think about this: as Richard North Patterson pointed out in The Bulwark last week about the current lineup in the Senate, “The 50 Republican senators represent nearly 42 million fewer people than the 50 Democrats.” Then he made the tyranny of that minority even more vivid: “The 41 Republicans necessary to sustain a filibuster reflect a relative fraction of our populace.”
The colloquial question is, (with an eye also on the anachronistic Electoral College, which in 16 years gave us two presidents who most Americans voted against), isn’t there something wrong with this picture?
But this debate is the polarity of black and white. Because as with so many impassioned issues, there is wisdom on both sides.
So far as I can figure, there are three valid arguments in favor of the Democrats tolerating the filibuster. One is that by its very design, the Senate is meant to be a sanctuary for comity. That’s what’s behind Minority Leader Mitch McConnell’s tweet that if the Democrats use their narrow majority to eliminate the filibuster, “It would drain the consent and comity out of the institution.” But talk about the pot calling the kettle black! McConnell called a Senate without a filibuster “a nightmare” in his tweet and then promised, in case we forget just what kind of hypocrite we’re dealing with, “I guarantee it.”
The second argument to preserve the filibuster is, do we really want to start fiddling around with rules and traditions that have long been a working part of our republic, even if sometimes they have worked more effectively to the public’s detriment than the public’s good? In the short term the answer might feel like yes, but that can lead to a very slippery slope. Slippery slopes can look pretty good from the top but from the bottom, not so much.
The third argument is, be careful what you wish for. What’s it going to mean if the filibuster’s gone and then the shoe’s on the other foot, which conceivably could be just two years from now?
Sound arguments. But those to kill it seem sounder.
For one thing, today the shoe’s on the Democrats’ foot. Doing what it takes to get laws passed is a political parallel to the platitude, “Smoke ‘em while you got ‘em.” Either they let the minority stand in the way of change in everything from taxation to immigration to healthcare to human rights to climate change to Covid relief, or they don’t. Either they choose to make good on the goals of the 81 million Americans who voted for Biden— or the 74 million who didn’t.
Think of the effacement of the filibuster as a tool to eliminate gridlock. Or to keep it simple, call it paralysis, not gridlock. Some Americans consider gridlock a good thing, but polls show that when it has us stuck in a horrible hole, most Americans would like to dig out of it.
If that’s true, then kill the filibuster, pass the legislation, and let the chips fall where they may. If it means Biden gets his agenda through Congress, it’ll have at least two years to take hold and then, if most Americans like what they get, they won’t likely turn the Senate over to GOP right away anyway. If they don’t, then maybe Republicans get their chance to find a better way.
Most Americans aren’t ideologues. They’re citizens, making their way from one day to the next. If Biden helps them— on Covid, on income, on health insurance, on climate, on everything else— then they’ll help him back. They won’t care whether there’s a filibuster or not.
For now of course, the whole thing is moot. At least three Democratic senators have said they’re opposed to abolishing the filibuster. But by and large, they’re also supporters of the Democratic agenda, which by dint of the election is the majority’s will. If the Republicans won’t let them pass it fair and square, maybe they’ll come around.
Hi Greg from Peggy in Seattle. As always I enjoy your perspective on issues and your journalist's writing style. I had no trouble viewing the Substack. Good luck on this new endeavor !