I recently came across a proposal touted by Democratic politicians including Representative Jerry Nadler and Senator Ed Markey that stated if Senate Republicans dared to fill Justice Ginsburg’s seat, they would abolish the filibuster and pack the Supreme Court.
While the filibuster may seem an inconspicuous part of American politics and it’s abolishment has bipartisan opposition in the Senate, a recent opinion poll has suggested that most American support the elimination of the filibuster. The refusal of President-elect Joe Biden and Vice President-elect Kamala Harris to rule out its potential for elimination in the debate reinstated the filibuster as a political institution that is highly under-appreciated by the American people.
Although the filibuster was not directly in the visions of the founders, it has become one of few surviving effective institutions that forces political parties and factions to compromise on policy as well as guarantee political tranquility in this age of increasing polarization. Therefore, it fulfills the framer’s original intent to protect the political minority from the tyranny of the majority as well as to make the senate the “cooling saucer” of American politics.
This attempt to end the filibuster is nothing new. Democrats like President Bill Clinton and former Republican Senate Majority Leader Bill Frist have argued for its removal before. Their argument is that the filibuster has made our government “dysfunctional” because it blocks too many of the majority party’s policies and laws from passing.
But that was exactly what the founders intended. Laws should be difficult to pass even if there is a majority of support. Thomas Jefferson famously said: “I own I am not a friend to a very energetic government. It is always oppressive.” This notion was confirmed and restated in Federalist 62 where Madison or Hamilton — the author’s true identity is unconfirmed — addressed the purpose of the Senate.
One of the purposes of the Senate, according to Federalist 62, is to protect the people from the excess of legislation. This was referred to as “disease to which our governments are most liable” in Federalist 62. The founders saw excessive law-making as a tool for the powerful political majority to infringe on the liberty of the political minority. In their determination to limit this tyranny of excess legislation, the framers set up several preventative checks in the constitution.
Compared to the house, the Senate is less vulnerable to demagoguery because it is smaller, has longer serving officials, and is indirectly elected by state legislatures. They hoped the indirectly elected branch of the legislature would guard against “fickleness and passion” from the house that presents themselves in the forms of bills.
“But wait,” says the hypothetical anti-filibuster proponent, “the founders didn’t write in the filibuster when they created the senate so it wasn’t part of the founder’s vision.” And they would technically be right. The filibuster was never designed to force senators to cooperate and compromise or to protect the political minority and its contemporary use of disrupting bills from passing didn’t occur until the beginning of WWI . Rather, it was a rule created by Vice President Arron Burr, a founding father, to make sure every senator in the minority gets their chance to debate and propose changes to a law.
We also have to remember that our current Senate isn’t the Senate that Madison and Washington imagined. The 17th Amendment and the modern political system made the checks that the founders set up against the excess of legislation and against tyranny of the majority largely obsolete.
Instead of being pragmatic and independent, senators now have to make partisan decisions to secure support from core supporters and donors, as well as raise money for their campaigns so they don’t lose elections or party nominations, like house members. Some senators, like Lisa Murkowski, even have to worry about the possibility of being sanctioned by the Senate leader and their parties if their vote doesn’t align with the party majority.
Thankfully, the Senate filibuster has maintained some of the original ideals of deliberation of the founders. With the current Senate filibuster, most legislation will, in reality, need 60 votes, or a 3/5 of majority to pass the senate. This is a hard number to achieve with the support of just one party as no party has had that kind of majority in the senate since 1978. Ultimately, for any major legislation to pass the Senate, almost no law can be passed without compromises and negotiation. Therefore, any bill that does happen to pass through Congress and head to the resolute desk will, in almost all cases, be a bill that has the support of members of both parties.
Such compromises are especially important in this age of polarization. Unilateral major partisan political action is almost certainly going to hurt the interest of the smaller half of the population. This threatens to cause significant social and political unrest — a danger that was warned of in Federalist 51 as “the tyranny of the majority.”
Many people might say that this system inherently favors Republicans, who would prefer the status quo, and it would prevent the potential trifecta Democratic governments who would wish to shape the country closer to their image. But that conclusion will be based on a false premise that the right only wishes for the status quo and are not trying to actively push the country’s politics towards the right. After the 2016 election, Republicans took control of the house, the Senate and the presidency. One of the bills that was proposed by Republicans would have banned abortions after 20 weeks. If the filibuster did not exist, said bill would have become lasting law since it ultimately had majority support in both Chambers of Congress.
Maybe the voters in the Bible Belt who elected those Republicans would be perfectly fine, if not happy, with that. But I’d imagine it would have been a nightmare for the other part of the population, the 61% of Americans who are in support of some form of abortion, that do not want their right to choice restricted by the morality standard of others. Using the filibuster, Democrats have also similarly blocked bills like the 2018 appropriations bill that would have given President Trump his wall. The political left and the right are always trying to reshape the country in their own way, and often that way will make this country close to unlivable for the opposed other half of the population.
Instead of hoping for national politicians to deliver change on this geographically, religiously and politically diverse nation, change could slowly happen from state to state.
The filibuster provides a check on one-sided, ideological and unilateral bills, like the bills mentioned above, by stopping them from ever even reaching the resolute desk. Senate Democrats should not abolish the means by which millions of womens’ right to choose were protected and the means that have prevented President Trump from building all of his border wall. Ultimately, this tool delegates an unexpected advantage to the political minority. This shouldn’t change just because Democrats now hold congressional power. Regardless, the political power of the majority should be restricted, no matter who holds it.
While the filibuster clearly induces gridlock in passing legislation, it is also responsible for a similar difficulty in repealing them. Just as passing a law requires 60 votes, their repeal does as well. But ultimately, this difficulty to repeal passed laws ultimately provides long term political stability and policy consistency in national politics.
If the filibuster is banned, its absence will lower the threshold for the passage of legislation, which will likely lead to an attempted power grab from both parties. This resulting furious passage of structural change to the federal government, will ultimately be in the hopes of gaining partisan advantage by controlling all three branches of government. In the book “It’s Time to Fight Dirty,” David Faris lays out measures by which the political left could grab power. For example, he cites actions like packing the courts or creating new states by separating larger states, like California, to gain senatorial advantage. But the same tactics could be applied to the right as well. If the nation experiences a cycle of power grabs every time a party gets swept into power, and whoever decides to rig the game first will be rewarded with more political power, will we still be able to call our government legitimate?
We have already seen the consequences of using the Senate as a tool to beget power from both parties without the filibuster and the resulting delegitimization of the federal judiciary. In 2013, Harry Reid of Nevada and the rest of Senate Democratic leadership decided to invoke the “nuclear option”. In doing this, they abolished the filibuster for any judicial and executive appointment except the Supreme Court and filled the DC Court of Appeal with judges that were too ideologically left for the Senate Republican minority. By refusing to work with the President and the Republican party to select new judicial nominees, this opened up a dangerous precedent. Once the GOP eventually took back control of the White House and the Senate, they heeded the democratic example and filled the federal court with ideological picks as well as expanded the filibuster ban to include the Supreme Court. Ideological picks by the President such as Neil Gorsuch and Amy Coney Barrett would never have received a vote if the filibuster had remained intact.
What a statue-based filibuster would hopefully do is elevate the status and importance of state legislatures and local governments. Instead of hoping for national politicians to deliver change on this geographically, religiously and politically diverse nation, change could slowly happen from state to state. Just as we’ve seen recently with cannabis legalization, states can become testing grounds for new legislation for both other states and the federal government. This allows legislation to once again deliver the change this country needs with calculation and deliberation, while at the same time a great amount of new-found flexibility.
In order to make this a reality, we would need to pass an act of Congress, or better yet a constitutional amendment, to codify the filibuster into the law and additionally raise the threshold for a passage of any statue or resolution in both the senate and the house to 3/5. It would ideally restore this filibuster and voting threshold on judicial and executive appointments.
The motion to repeal and abolish the filibuster will inevitably reappear every time a party gets a majority in the Senate, the House or the presidency, but we risk our democracy and the lives of our citizens being under constant scrutiny everytime a trifecta government is born under our polarized political atmosphere. Ultimately, putting the means to reduce political power of the political minority in the hands of the political majority would be as unwise as, in the words of Benjamin Franklin, “two wolves and a lamb voting on what they are going to have for lunch.”
Nathan Lee calls for the Senate of the United States to honor its tradition of deliberation and not fall for the avaricious desire for power.