Rethinking the filibuster

In the aftermath of a mass shooting at a primary school in Newtown, Connecticut in 2012, two senators introduced a modest measure to require background checks on all gun sales. Out of 100 senators, 54 voted to move ahead with it. In almost every legislative body, such a majority would be enough to ensure passage. In the Senate it meant defeat. That is because any member can stop a vote in its tracks by invoking the filibuster rule. If the other side cannot muster 60 votes to end the filibuster, the bill dies.

The men who framed America’s constitution intended the Senate as a bulwark against the tyranny of the majority. Yet the Framers never developed fixed procedures for shutting down debate. That absence has allowed minorities in the Senate to use various maneuvers, most famously the filibuster, to block legislation a majority wishes to pass. The filibuster was used rarely in the past, predominantly by Southern democrats seeking to halt civil rights legislation. Now the filibuster has become routine, cost-free, and all but ubiquitous. This has turned the Senate into the only legislative body in the world which requires a supermajority for ordinary business (The Economist March 13, 2021).

So what, if anything, should be done? Proponents for ending the filibuster cite the immediate needs of the country. Critical issues like infrastructure, climate change, corona virus, immigration, and election reform should not be held hostage by minority rule. Democrats say they finally have the majority, and their constituents want them to act. They argue that there is little bipartisan cooperation or even negotiation on big issue bills. So let the majority rule. Further, it is more difficult to undo existing legislation once it is in place. Witness the Affordable Care Act.

Not everyone agrees with that assessment. Opponents to eliminating the filibuster say the Framers designed the Senate to require deliberation and force cooperation. In a large, diverse country like ours they contend consensus is important to achieve lasting consent of the governed. Further, there is a distinct fear on both sides of nightmare scenarios if the filibuster is eliminated. President Biden stated, “There is no reason to protect [the filibuster] other than you’re going to throw the whole Congress into chaos and nothing will get done” (Washington Examiner July 21, 2021). Minority Leader Mitch McConnell added his voice, “Nobody serving in this chamber can ever begin to imagine what a completely scorched-earth Senate would look like” (Washington Post March 16, 2021).

Even if democrats decided today to bring a vote to the floor to eliminate the filibuster, they would fail because they simply do not have enough democratic votes (assuming complete republican opposition). At least two democrats have come out in support of the filibuster – Senators Joe Manchin (D-WVA) and Krysten Sinema (D-AZ). Senator Manchin wrote in an April 7th Washington Post editorial that he would not vote for the change even if all of his colleagues did. Senator Sinema, for her part, continues to advocate for bipartisanship to achieve realistic solutions (Washington Post June 21, 2021).

So are we stuck with the filibuster gridlock and policy abdication? Maybe, but there are alternatives. The Senate created the filibuster rule, and it can change it. One practical alternative is weaken the rule by reducing the voting threshold from 60 votes to 55. This reduction seems like a reasonable alternative in our age of polarization. It maintains protections for the minority while allowing some possibilities for bipartisanship. For instance, moderate initiatives on gun control or immigration, never possible with a 60 vote threshold, may be realistic under such a 55-vote rule. Also, reducing the filibuster threshold may provide an incentive for bipartisanship.

Another possibility is to carve out certain issues as critical, and therefore, not subject to the filibuster. The Senate has done this in two areas already – budget bills (called reconciliation bills) and nomination votes for federal judges. In both instances a simple majority is all that is required. The question is: Are there other critical areas that should be considered? Election reform and climate change come to mind, but there are surely others.

So maybe there is middle ground here. In a country so large, diverse, and deeply divided, these options might encourage the two parties to aim for compromise over polarization and consensus over gridlock. Neither of these options will please either party, but they just may provide an opportunity to actually govern again.

Tom Deloe is a retired public health officer in the U.S. Department of Human Services. Tom lives in Gettysburg and us a member of the Gettysburg Democracy for America Government Accountability Task Force.