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.
