When Republican Scott Brown won the special election to the Senate in 2010, the headline in the Village Voice read:
SCOTT BROWN WINS MASS. RACE, GIVING GOP 41-59 MAJORITY IN THE SENATE
It was a clever way of making a disturbing point: majority rule didn’t really exist in the Senate anymore. With 41 seats, the Republicans were now in control of that body. They could effectively use the filibuster to kill any bill they didn’t like – since the Democrats no longer had the 60 votes needed to overcome this strategy. The filibuster allows parties out of power to thwart the will of the majority. And this increasing exercise of minority rule is one of the major reasons Congress is less democratic and less responsive to the public than the legislatures in other modern democracies.
How It Works
If you look up “filibuster” in the Oxford English Dictionary, you find that the term originally comes from the Dutch word “vrijbuiter,” which referred to a “freebooter” – what we would call a “pirate.” This is apt. Modern day senators who use the filibuster are very much like political pirates who hijack bills so that they cannot be passed. The filibuster is a procedure ploy of blocking a bill in the Senate by talking it to death. Unlike the House of Representatives, the Senate has no time limits on debate. So a small number of senators can just continue talking on the floor as a way to block action on a bill. Discussion can only be cut off by a vote of cloture, which must be supported by at least 60 senators. Thus 41 senators can effectively use this tactic to block any bill.
In the old days, senators used to be required to actually talk continually to filibuster a bill. After running out of things to say about a particular bill, senators would resort to reading from the Bible, Shakespeare, or even the phone book to fill up the time. And cots were set up in the Senate cloak room so that senators would be available at night for any cloture votes. However, beginning in the 1970s, the Senate made filibusters much easier. Now all a senator has to do is to declare the intention to filibuster and show that he or she has 41 votes to support it and all work on a bill comes to a halt. The bill is set aside and the Senate can turn to other issues. So senators are no longer required to show their endurance by engaging in a verbal marathon. Much less dramatic, but still a very effective way to kill a bill.
Interestingly, the filibuster can be found nowhere in the Constitution. It is simply the product of Senate procedural rules. And it was not even created intentionally, but came about by accident. In 1806, Aaron Burr wanted to clean up the rule book of the Senate and eliminate those rules that were not being used. One of those rules was the motion for a “previous question” with which the majority could cut off debate and force a vote on a bill. This rule was removed, not because the senators wanted to sanction unlimited debate, but because in the friendly and courteous atmosphere that reigned in the Senate at that time, there was simply no need for it. It was not until 30 years later that some clever senators figured out that they could use the absence of this rule to filibuster a bill.
The 41 senators needed to filibuster a bill could represent as little as 10% of the American electorate.
The filibuster is politically illegitimate and undesirable for several reasons. First, it violates the central democratic principle of majority rule. It allows a minority of 41 senators to control the legislative process and prevent the majority from passing bills. A typical example of this was a 2013 Senate bill to expand background checks for gun ownership – something supported by a huge majority of Americans. The Senate voted 54 to 46 to pass the bill, but the measure failed because it did not meet the artificial 60 vote threshold necessary to stop a Republican filibuster. The 46 senators who blocked the bill represented 65 million Americans, while the 54 senators who supported the bill represented 250 million Americans!
But the unfairness of this kind of minority rule can be even worse than that. You can get 41 senators from small states that represent as little as 10% of the American electorate. This means that one in ten Americans can block bills that nine out of ten Americans want. This built in ability to frustrate the political will of the overwhelming majority is a ridiculous situation in any country which calls itself a democracy.
Other Democracies Don’t Do It
Empowering a minority to routinely strangle legislation favored by the majority has not seemed to catch on in most other countries.
Practically speaking, no other established Western democracy has a filibuster that allows a legislative minority to routinely block majority-backed bills. Some countries have what they call a “filibuster” but it is a very different creature than the American variety. In the United Kingdom, for example, it is possible for a member of parliament to keep talking in an effort to block a piece of legislation. But their rules stipulate that speakers can be cut off if their comments ramble and are no longer germane to the piece of legislation at hand. And when filibusters have been tried, they usually have only had the effect of stalling a piece of legislation, not killing it off. And these attempts are so uncommon that they usually garner front page attention in the British papers. The same is true in Canada. There, in 2011, the New Democratic Party launched a rare filibuster over a bill where its members managed to talk for 58 hours straight. But eventually the effort sputtered out and the bill was passed by the Conservative Party majority. So in practice, few other democracies utilize the extreme and undemocratic version of the filibuster that has become so common in our country. Empowering a minority to routinely strangle legislation favored by the majority has not seemed to catch on in most other countries. Go figure.
Most States Don’t Do It
While some may think the filibuster is American as apple pie, most of the states don’t think so. Most state governments consider filibusters to be a bad idea and have rejected their use in their legislatures. Thirty-six states have nothing like a filibuster in their procedures. And in many of the states where it is a possibility, like Vermont, it is used only rarely. There are only a handful of states, such as Texas, where the filibuster is a commonly used tactic. So even among other legislative bodies in the U.S., this process is viewed with a great deal of skepticism.
Why It Matters
The American public should look at the Senate filibuster with great skepticism a well, because it means that they often cannot get the policies they want – which is much of what democracy is supposed to be about. The filibuster is one reason that the Senate has become known as the “graveyard” of policies favored by the public. Southern Democrats used this tactic to block anti-lynching bills in the 1920s, 30s, and 40s, and delay desegregation laws for decades. In recent years, it has also helped to block a whole range of policies supported by a majority of Americans, including bills on climate change, campaign finance reform, higher taxes for the wealthy, gun control, higher minimum wages, and voting rights. In a checks and balances system that is already prone to gridlock, this adds yet another opportunity to create legislative paralysis.
The filibuster is one reason that the Senate has become known as the “graveyard” of policies favored by the public.
Making matters worse is the fact that filibusters have become a common everyday occurrence in the Senate, especially when the Republicans are in the minority. Consider this: in the first two years of the Obama administration, Senate Republicans used the filibuster or the threat of filibuster to kill hundreds of bills that had passed in the House of Representatives, often with bipartisan support. These bills were never debated or voted on in the Senate. In many cases, the threat of a filibuster made these bills dead on arrival in the Senate and many did not even get a hearing in a committee.
It’s Getting Much Worse
It didn’t always used to be this way. The filibuster has been around since the early 19th century. But it was rarely used. As recently as the 1950s, it was used on average once a year. And in the 1970s, it was unusual for the filibuster to be used more than a half dozen times in a two-year congressional term. This all changed in the 1990s when the Republicans began to weaponize the filibuster and greatly increase its use. According to political scientist Barbara Sinclair, between 2007 and 2009, Republicans used delaying tactics like filibusters on a whopping 70% of major bills coming to the Senate. In the 1960s, only 8% of major bills were subject to those tactics. And in the four years from 2007 to 2011, Republican senators filibustered more bills than in the entire 60 years from 1920 to 1980. It is this explosive growth in the use of the filibuster that threatens to bring this institution to its knees and routinely denies Americans the policies they want in place.
Unfairly Favoring Conservatives
We’ve seen elsewhere on this site that the Senate already operates in favor of the Republicans. The rule that states get two senators irrespective of population and the fact that most small states lean Republican means that conservatives are hugely over-represented in that body. Does the filibuster work unfairly to their advantage as well? They would say no – that both parties are free to use this paralyzing tactic. And it is true that Democrats sometimes use the filibuster. But there is a crucial difference. Often a Democratic filibuster is used to preserve majority rule, not frustrate it. That is because most Democrats tend to represent high population states and thus represent more voters than the Republicans from small states. For example, in 2017, the Democrats threatened to filibuster a Republican tax bill that favors the wealthy and corporations. Their 49 senators represented 182 million Americans, while the 51 Republican senators represented only 143 million. So the Democratic filibuster would have been used to block minority rule and ensure the majority of Americans got their way. Not a bad thing.
Ultimately, however, the filibuster is a political tactic that strongly favors the Republicans. This is shown by the fact that virtually all the large increases in the use of the filibuster have taken place when the Republicans have been in the minority. The reason for this is that it is the Republican Party that most often wants to hobble government and prevent the passage of new legislation and new programs. The Democrats are the party that believes in active government and the use of government policy to address the pressing problems faced by the nation. The filibuster, as a political tool that blocks legislation, thus works much more to the advantage of the Republicans who want to block the creation and expansion of government programs.
Killing bills gets all the attention, but the filibuster can have another, less noticed, but equally toxic effect on public policy: it can greatly weaken the laws that are passed by the Senate. A filibuster is often used to water down laws and make them much less effective. At times, even just the threat of a Republican filibuster has forced Democrats to jettison important parts of bills in order to win enough votes for passage. A classic example of this occurred in 2010. There was a rare window of opportunity for some strong legislation on global warming, with Democrats in control of the White House and both houses of Congress. The centerpiece of the bill passed by the House was a “cap and trade” approach to lowering carbon emissions – an approach that has now been adopted by 39 other countries. But in the Senate, the Democrats had to drop out the cap and trade provision because they didn’t have the 60 votes necessary to overcome a threatened GOP filibuster.
Similar problems have plagued legislation in other areas as well. The threat of filibuster has resulted in minimal gun control regulations which have done little to discourage an ongoing series of mass killings with automatic weapons. Tactics like the filibuster have also ensured that policies to help the poor are weak, fragmented, and poorly funded. As a consequence, our social safety net is badly made and full of holes, and we have the highest poverty rate among major Western democracies.
For all of the reasons mentioned above, the filibuster is a political disaster. It is being used to strangle the federal government and it undermines efforts to create a healthy and functioning democracy in this country. How can it be defended? Apologists for the filibuster offer up a number of arguments – all of which are weak or just plain wrong. One of the most common is that this procedure is necessary to protect the political rights of minorities and to prevent tyranny of the majority. But minority rights are already protected in the Constitution, and enforced by the federal courts. More importantly, using the filibuster to substitute tyranny of the minority for tyranny of the majority is simply a bad idea. In trying to protect the interests of a minority, you fail to protect the interests of the majority – and you create all the political problems described earlier.
Using the filibuster to substitute tyranny of the minority for tyranny of the majority is simply a bad idea.
And despite their claims, Republicans rarely filibuster to actually protect minority political rights. One of the few instances of this is their effort to protect the right to own guns. Usually Republican filibusters are used to protect minority financial interests – blocking efforts to raise taxes on the wealthy, stymying attempts to regulate Wall Street bankers, preventing costly environmental requirements for the energy industry, and so on. The minorities who benefit most from this form of minority rule are wealthy special interests – with the losers being the American public.
Sometimes the Constitution and the founding fathers are invoked to defend the filibuster. But of course, this practice cannot be found anywhere in the Constitution. More importantly, many of the founding fathers explicitly spoke out against the use of supermajority requirements in Congress. In fact, the Articles of Confederation were seen as unworkable in part because they required a supermajority in Congress to do such essential things as raise armies and levy taxes and this led to ineffective government. The hostility of the founding fathers to supermajorities was made clear in the Federalist Papers, where Alexander Hamilton severely criticized the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifice of an insignificant, turbulent, or corrupt junta to the regular deliberations and decisions of a respectable majority.”
Solutions for the U.S.
The most obvious solution is to simply amend the Senate rules to get rid of the filibuster and allow a simple majority of 51 senators to cut off debate. This is not as radical as it sounds, because it would simply bring the Senate in line with the way things work in most other democracies and in most of the states. Eliminating the filibuster would solve virtually all the problems that are caused by this procedure.
Other ideas for reform include lowering the number of votes needed for cloture. This could be done in several ways:
- If only 55 voters were needed, for instance, it would be much easier for the majority party to end a filibuster.
- Or we could make the number of votes for cloture equal to the number of sitting majority party senators. If the Democrats had a majority of 58 senators, 58 votes would be all that is needed to end a filibuster. It is thought that this would have the benefit of exerting some moderating effect on legislation because a majority party would be forced to rely on all its members, including those nearer the political center, in order to end a filibuster.
- Or, we could have the number of votes required for cloture diminish each time a cloture vote failed. Thus the first vote would require 60 votes to win, the second vote would only need 57 – and eventually with the seventh vote, the threshold would be only 51 votes. In essence, this would reduce the filibuster to only a delaying tactic.
Of course we could always just go “old school” and bring back the former requirement that a senator must actually keep talking to keep a filibuster going. These were arduous and exhausting affairs and probably one of the reasons there were so few filibusters in the old days. This approach has some appeal – C-Span would love it – but it also has some drawbacks. Today, a senator can simply declare the intention to filibuster, and the bill is laid aside, and business as usual continues on the Senate floor. But if senators had to keep speaking, work on the floor would grind to a halt, thus delaying action on other important pieces of legislation – not a very desirable situation.
Prospects for Reform: Mixed
It is not impossible to reform the filibuster – it has been done in the recent past. And unlike many of the other political reforms discussed here, this one does not require a herculean effort to change the Constitution – it only requires a change in Senate rules. In 2013, the Democrats used the so-called “nuclear option” to reduce the votes for cloture from 60 to 51 for all executive branch nominations and all judicial nominations other than the Supreme Court. The nuclear option is a complicated parliamentary maneuver that allows Senate rules to be changed by a simple majority vote, rather than the two-thirds that is usually needed to change these rules. In 2017, the Republicans also used the nuclear option to lower the cloture threshold for Supreme Court nomination to 51 votes as well. But of course, none of these changes addressed the many and severe problems that this practice causes for policy legislation.
So the question remains: What are the chances for seriously limiting or abolishing this practice for legislative bills? The answer is complex and not very encouraging. On the positive side, there is some indication that the American public is becoming more frustrated with the filibuster. A poll taken in 2013, after a huge increase in Republican filibusters during the early years of the Obama administration, 44% of Americans said they were in favor of ending this practice. However, it is less clear how important the public thinks this problem is, and whether there is the political will to push for this change in an aggressive and prolonged way.
Less promising is the fact that support by senators for reforming the filibuster is very mixed and ever-changing. It mostly depends on whether their party is in the majority or the minority in the Senate. Politicians whose party is in control of the Senate are more likely to endorse filibuster reform, while those in the minority predictably tend to want to keep things as they are. Senators thus tend to focus on what is in their short-term political advantage – not what is good for American democracy in the long term. So we find, for instance, that almost all of the Democratic party’s candidates for the presidency in 2020 publicly came out against progressive efforts to reform the filibuster – a stance, no doubt, heavily influenced their party’s minority status in that body at the time.
If the filibuster remains in place, the Democrats have little chance of enacting their policy agenda.
The Democrats seem afraid of what a Republican Senate would do without the Democratic ability to filibuster. But they seem to forget that most legislation can be reversed when the Democrats eventually come back into power; and they would have the ability to pass their agenda unimpeded by a Republican filibuster. They seem obsessed about what the Republicans could do without the filibuster, instead of focusing on what the Democrats could achieve if this tactic were abolished. If the filibuster remains in place, they have little chance of enacting their policy agenda: universal child care, fairer taxes, free public colleges, stronger environmental protections, more effective anti-poverty policies, and so on. As Ronald Brownstein of The Atlantic observed during the 2020 election: “Abolishing the filibuster is unavoidable for Democrats. Even if the party sweeps Congress and the White House in 2020, the Senate rule would let a faction of the reddest, whitest states stymie its agenda.”
Eliminating the Senate filibuster would be an important step in making Congress more democratic. But at this point it is not clear at all that this reform is at the top of anyone’s agenda or that it will take place any time soon.
read the next issue: 5. Unaccountable Power for Life