A Question for the Filibuster
Where's the positive example?
So, as we watch the current government shutdown roil on, the question of the filibuster has emerged in our national conversation, at least on the margins. This is because the reason that we are in a shutdown is that, in simple terms, the rules of the Senate require 60 votes to unlock the gate needed to proceed to a final vote. Republicans currently hold 53 seats, meaning that they need seven Democrats to vote with them so that a continuing resolution can be passed to reopen the government.
In its simplest formulation, the filibuster exists because in 1806, in an attempt to streamline the rules of the chamber, the “previous question motion,” which would allow debate to cease on a majority vote, was eliminated. It was argued to be redundant. The inability to force debate to end created the filibuster, which was eventually curtailed, to a degree, in 1917 with the adoption of the cloture rule, which allowed a supermajority to force an end to debate. See The Brennan Center’s The Filibuster Explained for more details, as well as my 2017 post, On the History of the Filibuster.
Many honor and revere the filibuster as a unique and vital element of American political design (never mind that it was never really designed, but rather kind of happened), and that it makes the Senate a unique body that had to legislate via negotiation and compromise because of the need to construct a super-majority so as to pass bills through the chamber.
I am not one of those persons.
Had you asked me about the filibuster when I was in high school, I would have absolutely adhered to the above formulation, as I would have through my undergraduate studies, through grad school, and more or less into my early professorship. I accepted the mythology (and I use that word very deliberately) of the filibuster, and was generally more amenable to appeals to the Founders and design “arguments.”
What happened to me?
The answer is pretty straightforward: I started to apply what I had studied and learned about the rest of the world to US constitutionalism, and found it wanting.
Moreover, I started to see that examples of the filibuster creating compromise and negotiation were lacking in my news consumption, while plenty of examples of using the filibuster simply as a minority veto were rampant.
As I wrote back in 2021:
To summarize, the filibuster is a mechanism that gives the minority party (that often represents a minority of the population) a veto over a large chunk of legislation (although there are some ways around it).
It is not a mechanism to build compromise.
It is not a mechanism to build bipartisanship.
It is not a romantic way for Jimmy Stewartesque Senators to fight for justice.
It is not even about actual debate (i.e., talking).
It is a procedural mechanism that allows 41% of the chamber to stop legislation.
Still, given Trump’s call to eliminate the filibuster, which would allow the Republicans to open the government without Democratic votes, has led to defenders of the procedure coming to the fore. As I noted in that link, Senator Curtis (R-UT) asserted, “The filibuster forces us to find common ground in the Senate.”
Or, here’s Charles C. W. Cooke of the National Review:
Here’s Sean Trende, of Real Clear Politics and AEI.
I asked both of them on Twitter a version of “Serious question: what compromise or noteworthy policy outcome do you think the filibuster has produced in the last 20 years?” (no answer was given). I have taken to asking this of anyone I see defending the filibuster. It is not a snarky question, for while I am pretty sure I know the answer (there isn’t such an outcome), it is possible I am missing something.
The federalism argument is predicated on the notion that states as units have different interests than mere aggregations of people in the states (i.e., what the House represents). I would note two things. First, as I have noted for years (decades?), states are made of people. This fact needs to be core to any assessment of the democratic quality of a given institutional function. Second, the very existence of the Senate does privilege states as political units, especially given the two-Senators-per-state rule. There is absolutely no democratically defensible reason to further enhance the power of individual states in the legislative process by creating a minority veto as part of the process.
As a general matter, I support the notion of a federal chamber to represent states. The problem with the US Senate is the two-per rule. It distorts representation way too much.
I also simply do not buy arguments that the states as units have truly unique representational needs that are outside of what national representation looks like.* To wit, a farmer in Iowa has plenty in common with farmers across the country, including in California. And people living in Atlanta have plenty in common with people living in Newark. Our interests, in the aggregate, are not as state-focused as a lot of people who focus on a vague “federalism” argument suggest is the case.
I do not know how to test this hypothesis, and I am sure folks who hold the view I am critiquing would bristle at the suggestion, but I think that the problem is buying into a long-standing mythology steeped in American political culture rather than taking a broader, comparative view, or even acknowledging that our politics are thoroughly nationalized, as are our parties. There is a reason that every single state is really some shade of purple, and that electoral outcomes on a national scale are linked, as much as anything else, to the public’s view of the president. Indeed, if people know anything about politics, it is national politics they follow, not local politics.
I would add that many countries are federal without having the exact same structures we have. While others (e.g., Brazil) have representational disparities between the largest and smaller states, they are not as extreme as those in the US. Some federal systems make the two chambers utterly equal in terms of legislative power, and others do not (e.g., Germany). This is to note that federalism, as a general element of a constitutional order, does not have to look like what we have in the US to be federalism.
This is the part where I point out that the US went first in designing a constitutional order, meaning a lot of design choices were guesses, and so treating them as though they were inscribed by the finger of God is a mistake. Moreover, let’s remember that the two-per rule and other elements of the institutional design of the Constitution were basic political compromises so as to get the thing passed, not because they were known to be perfection birthed by genius.
I would note that in other areas of the American constitutional order wherein super-majority requirements exist, e.g, amending the Constitution, overriding presidential vetoes, or removing officer-holders via the impeachment process, we do not see them cultivating negotiation and compromise. Instead, we see practically no attempts to amend the constitution, rare vetoes by the president, and removal via impeachment as essentially constitutional dead letter.
I realize that these mechanisms operate differently for different purposes, but they do illustrate that minority vetoes do not tend to lead to lots of compromise. Instead, they tend to lead to long-term blockages. People tend to focus on the “super-majority” part of the formulation, because it sounds like it empowers the most people in decision-making, but the mathematical reality is that these processes empower the numerical minority.
Really, along those lines, the best argument I can come up with for the filibuster is that the structure of the Senate is such that it is possible for the majority of seats to represent a minority of voters nationally (indeed, I am fairly certain that it has been some time since a GOP majority in the Senate actually represented a majority of voters). As such, there is a logic to suggest that the Senate should operate in a manner that requires bigger buy-in. But I do not see much evidence of consensus-based decision-making in the chamber. And filibuster carve-outs already allow for substantial action on a 51-vote basis: see the Big Beautiful Bill if you have any doubts about my position.
I could also see a super-majority requirement for SCOTUS appointments, given the importance of the job, and so, in theory, compromise and moderation should rule the day. But I have my doubts it would work out that way, but I am open to persuasion.
So, as a method of conclusion, I will reiterate my question: what compromise or noteworthy policy outcome do you think the filibuster has produced in the last 20 years? I will further amplify it and ask: even if an example (or examples) can be rendered, do you think those examples sum to a real defense of the process?
Note that I am fully of the view that allowing the majority party to pass legislation when it is in power (or to dismantle policy via legislation) is how a representative democracy should work. Moreover, allowing parties to govern allows the public to see who is doing what and who is responsible for what is done. I very much think that increasing the clarity of responsibility will help the public determine whether a given party is really governing in the public interest or isn’t. This would enhance, in my view, the democratic feedback loop in the US, even with all of the flaws that I constantly write about with that loop.
Some of my previous posts on this subject.
- The Filibuster Needs to Go
- Another Anti-Filibuster Post
- Counterpoint: The 6 January Commission and the Filibuster
*One could argue they did in 1787, as each state was sovereign, and joining a federal union meant giving up some power. I would note that the greatest assertion of “states’ rights” was the secession of the southern states to form the CSA. That action was one of multi-state interest, not just of unique, individual units. The notion that each state is so very unique as to require co-equality does not fit the fact that interests, rather clearly, are based on factors other than lines on a map.
A filibuster in 1968 prevented Associate Justice Abe Fortas from becoming Chief Justice of the USSC. Less than one year later Fortas resigned from the court due to a ethics scandal.
Not in the last 20 years though.
@Bill Jempty: And, I would note, was not a legislative/policy outcome. And it wasn’t about compromise or negotiation.
A farmer in Iowa and a farmer in California are separated by one fundamental divide. In one place, adequate free water falls out of the sky. In the other, massive infrastructure is required to provide enough water. Agriculture anywhere west of the Great Plains is a radically different undertaking than Back East.
It killed the public option in ObamaCare.
Whether that was a good or bad thing depends on whether you think that was a good idea.
The Joe Liebermans of the world were pleased.
@Michael Cain: But in a two-party system, H2O or no, the likely voting patterns, on a mass level, are likely to be the same.
I am not arguing that people are identical across space.
Living in Birmingham, AL, and San Francisco, CA, are very different experiences, but voters in those places have more in common with each other, especially in terms of which party they are more likely to vote for, than either group has with a rural voter in the middle of Nebraska.
@Gustopher:
Oh, it has killed a lot of things.
But I would note that’s not my question. My question is about demonstrated negotiation and compromise.
I think your history of the filibuster leaves out an important detail: Even though it technically started in the early 19th century, it was a rare procedure until after the Civil War, and historically it was most often used to block civil-rights bills. (Interestingly, it was President Woodrow Wilson, one of the most notoriously racist presidents of the 20th century, who helped introduce cloture after the Senate was blocking an armaments bill during WWI. That said, blocking civil rights was overwhelmingly its most frequent use before the 1970s.) This history tends to get omitted by its modern-day defenders, for obvious reasons.
@Kylopod: Oh, I was not intending to provide a comprehensive history.
But your point is well taken and worthwhile.
Ah, but you forget that, like all holy writ, the founders pens were guided by God. And are you insinuating that Originalism is not a sincere effort to divine divine intent? /s
I’m with you on all of this. Despite my great reservations around whether “increasing the clarity of responsibility” is even possible in our polarized and post-fact media landscape. Reality-based information sources are giving a crystal clear view of which party is and which party isn’t governing in the public interest right now, yet if you watch Fox News or get your news from Bro podcasts, you wouldn’t have a clue.
So, let’s hope Trump prevails on his calls for the Republicans to end the filibuster. It appears we will get an immediate field test of “the democratic feedback loop” if Senators Graham, Scott, and Kennedy take the follow-up step they are threatening with ACA subsidy conversion to HSAs. This is a horrible idea and I would loved to have the resulting healthcare chaos hung around the GOP’s neck like an albatross.
I have occasionally been called on to teach Decision Analysis, and one of my favorite lessons is the one on the difference between compromise and consensus. Consensus is when nobody gets exactly what they want, but the course of action chosen can be thought of as what a hypothetical average negotiator wants. Compromise is what happens when some of the things Group A wants are unacceptable to Group B, and vice versa, but neither group has the power to do what they want unilaterally. Negotiations between labor and capital are nearly always compromise, not consensus — and strikes and lockouts are part of that negotiation process.
By that definition, I would argue that every instance of “minority veto” was, in fact, an example of compromise. If you’re looking for examples of compromise that did not involve legislation failing to pass at all, I would suggest that the annual National Defense Authorization Acts for most of the past two decades — any time neither party had supermajorities in both houses — provide lots of instances.
@Steven L. Taylor: I think the Joe Liebermans of the world would say that ObamaCare with only private options is a compromise between what existed before and socialized medicine.
It’s not a compromise I liked, but thats kind of the nature of compromise. Fairly good, liberal policy watered down and made more incremental and less revolutionary (in the most boring definition of revolutionary — we could have had a fairly swift change, but no heads on pikes even in the non-compromise version).
@DrDaveT: I am impressed that you have outpedanted me.
IMO it’s impossible to set rules in such a way that they can’t ever be gamed, abused, misused, or implemented in such a way that the spirit of the rule is nuked while the letter is kept pristine.
It doesn’t matter what the intent was, whether noble or not. It matters whether people use them as intended or not. And the answer is usually “not.”
@Gustopher: Pedants Я Us.
@DrDaveT: I would have to give your compromise/consensus definitions some thought, but I appreciate the basic notions.
I suppose what I am trying to point out is that defenders of the filibuster claim that it forces the two parties to horse-trade to create legislation because it is necessary to build a broader coalition to get the 60 votes. I don’t think there is much in the way of evidence that, in fact, it does that.
Your example of the NDA is actually telling for my argument, as defense spending is one of the less contentious elements of US policymaking as a general matter, meaning that I don’t think the filibuster is the main reason there has been more agreement there than in other areas.
@Gustopher:
The reason we even have the ACA in the first place is because there was, briefly, a filibuster-proof majority in the Senate. The reason no further changes could pass the Senate, and the House had to pass the Senate version or fail to pass anything, was because Ted Kennedy died and a Republican won the special election.
In other words: had there not been two brief windows of 60 Ds (from July 7, 2009-August 25, 2009 and from September 25, 2009-February 4, 2010) the ACA never would have been passed.
@Steven L. Taylor:
I don’t think that’s what I was claiming, so perhaps I was unclear on exactly what your thesis is. I think the NDAAs that were passed have been qualitatively different from what they would have been like if a simple majority in the Senate were all that was needed, at least since the Gingrich era.
As for whether the filibuster is a good thing or a bad thing, I have no idea. I do note, though, that without it we would already have not only a minority veto, but a minority win — the 53 R senators representing 47% of the population could impose whatever they want on the majority.
@DrDaveT:
Indeed. As I note in the post, that is the best argument in favor of the filibuster.
Democrats caved as per usual.
They were promised a vote on subsidies which will never actually happen.
@Daryl:
As per usual for both parties. Republicans have never gained significant policy concessions when shutting down the government. They didn’t succeed in getting the ACA defunded during the 2013 shutdown, and during the 2019 shutdown–the previous record-holder for length–it ended with Dems giving less than 1% of what Trump demanded for border-wall fencing.
@DrDaveT:
I like the consensus/compromise frame.
I’m not sure a minority veto necessarily counts as compromise. If the filibuster just kills a bill (or scares people off from even bringing it up), that strikes me as more of a stalemate than a negotiated middle ground. Or maybe it’s an implicit negotiation of a stalemate?
ps, Is your class undergrad, grad, other? Are you a 1 or 2 box guy?
@Steven L. Taylor:
That’s the thing, right? There are many contributing factors to the nationalization of politics, but the primary one is that technology —> globalization —> increasing interdependence.
Almost everything was local in the 18th century.
Can anyone imagine the US today without a nationalized standing army? Can anyone imagine the several States ever really functioning as a single unit in any major capacity without a strong central government?
Hell, Texas sometimes attempts to operate as if they are an independent nation state. Does anyone really think that if states operated more independently (without a strong federal government), that they wouldn’t close their border during a dispute with New Mexico over say water rights or immigration?
Shit, they currently try to enforce their laws on other states. The same crap went on wrt to runaway slaves.
The irony is that the same critics who blast the UN and the EU are the same people that claim to want a similar system in the US. Sure, they would argue those international bodies are fundamentally different because they are comprised of distinct cultures. Except that is the fucking claim they make about the differences between US states. At some point along the decentralization continuum, those views cannot be reconciled. (Not to mention the number of advocates of federalism who claim the states should do it, but then promote the same small government policies at the state level.) It’s almost as if their arguments are made in bad faith.
You are correct when you say that the foundation of it all is myth. That same dumbed-down Reader’s Digest worldview is the way people believe the filibuster promotes negotiation and compromise.
They think that negotiation is “10!” “5!” “7.50!” “Deal!” :spit: :shake:
Or that some Senator named King Solomon will threaten to cut a baby in half on the Senate floor and get the two sides to the table.
Schoolhouse Rock was more sophisticated than a Mike Lee op-ed defending the filibuster. But given the number of cartoon characters we have running around the halls of Congress, wearing robes in single judge federal districts, not to mention throughout the Executive, I guess it tracks.
The filibuster is nothing more than codified leverage. A pole to thrust into the spokes of the wheels of government. That doesn’t promote good faith negotiation and compromise—it does the opposite.
Functionally, it isn’t even republican, much less democratic. It is a tool for those with power to forestall any threat to that power.
And a convenient way for lazy legislators to avoid doing any real work—passing legislation, updating it to close loopholes, and adjusting it to changing conditions and updated knowledge is hard work. They have some fundraising to do and cigars to smoke.
Besides, nobody pours tea into a saucer to cool it.
@Steven L. Taylor: @DrDaveT:
Does it, though? Not having to vote on legislation allows elected representatives to avoid attaching their name to legislation that harms their constituents.
Note that when the GOP tried to repeal the ACA—when it was a real possibility rather than a performative exercise—the GOP had defectors and the legislation failed.
As it functions, it really just promotes shifting blame and intransigence so that Senators can avoid actions that may have negative consequences if a policy were to be enacted. It further shields legislators from accountability at the ballot box.
Bad policy is inevitable. Mistakes are inevitable. Slowing the legislative process doesn’t do shit to promote good policy. Rather, it makes it harder to repeal bad ideas and improve ones that need amending to fulfill the original intent. No matter what, there will be individuals and groups who find a way to benefit from shitty policy. For them, the filibuster is an effective kill switch.
In legislatures that pass bills by simple majority vote – i.e. virtually all of them – negotiation and compromise take place within the majority party. That’s because its members have to explain to constituents why they supported a bill, once its consequences become apparent. Members in marginal seats are acutely aware that voting for bills which will actually become unpopular laws is not a sensible thing to do.
Many Americans have argued that simple majority legislation would produce a whipsaw effect every time government changed hands, but empirical evidence from other countries – and indeed from American states – demonstrates this rarely happens in practice. Parties in other legislatures tend to reconcile themselves to positions which have majority support in the community even when their own members oppose them*. In the US Congress, however, parties are free to pander to the extremists in their ranks by passing unpopular bills knowing full well the minority party in the Senate will stop them ever becoming law.
Once it sinks into legislators’ consciousness that passing bills is not performance art for their party’s base but making laws whose consequences they will be held responsible for, they tend to focus on what is politically feasible, not on what their hard-core supporters want. If it were otherwise, left-leaning governments all around the world would have passed much stronger measures to reduce carbon emissions than has actually been the case.
*A case in point was the introduction in Australia of a goods and services tax last century. It was bitterly opposed by the then-opposition, but they have never tried to repeal it when they are in power. They’d have to impose a whole raft of new taxes to replace it! Another was the introduction of mandatory universal superannuation contributions by employers, passed by Labor in the 1990s to howls from the opposition that it meant economic ruin of the country. But universal superannuation quickly became popular, and the Liberals have never tried to end it.
@Ken_L:
Exactly!!
@Kurtz: Agreed.
When I said it was the best argument for the filibuster, I did mean to suggest it was a good or persuasive one, if that makes any sense.
@Kurtz:
The inability of people to recognize that life (and therefore politics) is rather different now than when all of this was designed is pretty stunning.
@Mimai:
Long ago, I designed and taught both undergraduate and graduate courses, but I left academia during the Clinton administration. More recently, my DA teaching has been mostly seminars for professional colleagues.