“We should not be doing anything to mess with the strength of the filibuster,” says Cory Booker.
“Having just lived through being in the minority and how destructive the 51-vote threshold has been for Supreme Court justices, I just want to think long and hard about it,” says Kirsten Gillibrand.
Bernie Sanders says he’s “not crazy about getting rid of the filibuster.” Kamala Harris says she’s “conflicted.” Only Elizabeth Warren has expressed any openness to killing it and moving the Senate to simple majority rule. “All the options are on the table,” she told the hosts of Pod Save America last week. “That’s how we gotta do this.”
It’s easy to understand their reticence. Without the legislative filibuster to constrain them, Republicans would have repealed the Affordable Care Act. And with the judicial filibuster, Democrats might have kept President Donald Trump’s most objectionable nominees off the federal bench, Supreme Court included.
To take these victories as reason to keep the filibuster is to mistake the consolation prize for the first-place trophy. Progressives have occasionally used the filibuster for their own ends, but for most of its modern history it has been a tool of reactionary obstruction. Whatever protection it provides — supermajority votes may give a conservative Supreme Court pause before striking down progressive legislation — is outweighed by the incredible burden it places on governance and the ways in which it damages democratic accountability from the public’s point of view. Ending the filibuster comes with risks, but those pale in comparison to the damage it will do to a future Democratic presidency, should the party win the White House and the Senate in 2020.
Defenders of the filibuster treat the rule as a vaunted tradition of the Senate — the element that gives the chamber its singular quality. “We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body,” reads a 2017 letter from a bipartisan group of 61 senators, urging Senate leadership to preserve the legislative filibuster. “We are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation in this body in the future.” Among the signatories are Amy Klobuchar of Minnesota, another senatorial candidate for the Democratic presidential nomination, and Sherrod Brown of Ohio, a possible contender.
But the men who structured the Senate didn’t envision a filibuster or supermajority requirement. Indeed, they were quite wary of such requirements, which they blamed for the disorder of American government under the Articles of Confederation. “If a pertinacious minority can control the opinion of a majority,” wrote Alexander Hamilton in Federalist No. 22, then “the majority, in order that something may be done, must conform to the views of the minority.” This dynamic would “give a tone to the national proceedings,” resulting in “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
For the framers of the Constitution, the deliberative nature of the Senate would flow from its small size and long tenure of officers. James Madison explained this in Federalist No. 63, where he described how “an additional body in the legislative department” with “sufficient permanency to provide for such objects as require a continued attention” would help keep government consistent and accountable.
The filibuster wasn’t part of the Senate’s design. It came later, the unintended consequence of a procedural tweak. The House and Senate started with nearly identical rules regarding debate. In 1806, the Senate dropped the “previous question” motion from its rule book. That motion is still used in the House to cut off debate with a simple majority. At the time, the change meant nothing; Vice President Aaron Burr thought it was extraneous and had urged the Senate to get rid of it.
It would take decades before senators realized that without such a motion, there was no way for a simple majority to forcibly end debate, what we now call “cloture.” It was possible for a single member to block anything he opposed, and it took unanimous consent to stop him.
The filibuster was born. But the small size of the Senate and informal rules around deliberation meant it wasn’t used in earnest until the late 19th century, as American politics became more polarized around party and ideology, and informal rules around speaking and debate could not accommodate the increased pace of activity in the chamber.
The modern filibuster began to take shape in 1917, when President Woodrow Wilson used war demands to pressure the Senate into adopting cloture and a supermajority threshold for ending debate (at the time, it required two-thirds of the Senate). But even with reform, the filibuster remained a powerful tool for “tedious delays” and “contemptible compromises of the public good.”
In the 20th century, recalcitrant senators used the filibuster to block or delay anti-lynching laws, bans on poll taxes, bans on literacy tests, and other civil rights laws. The Civil Rights Act of 1964 was nearly killed by a filibuster. In recent decades, routine use of the filibuster has made it difficult for presidents to pursue their agendas and for Congress to pass major legislation. In turn, it has obscured democratic accountability and made voters feel less efficacious — when voting majorities to power isn’t enough to change the way things are, it’s fair to wonder if electoral politics is worth the trouble.
We are long past the days of large, bipartisan majorities for ambitious, far-reaching legislation. Just three Republican senators backed the 2009 stimulus and not one voted for the Affordable Care Act. Critics see this as evidence these laws were too liberal, but in truth it reflects structural change in American politics. The parties are polarized and ideologically coherent; they offer fundamentally different visions for the direction of the country. A President Booker or Klobuchar might seek Republican support for their agendas, but they won’t likely find it. The legislative path for their policies — to say nothing of a Green New Deal or universal child care — will go entirely through the Democratic Party.
As it stands, Democrats would be lucky to win a Senate majority in 2020, much less the supermajority needed to end a filibuster. For the party to have any hope at actually implementing its agenda, the filibuster needs to be either reformed or eliminated. And the first step toward that is litigating the issue in public to help voters see the cost of preserving this rule, which could put pressure on other senators if a movement forms to end it.
The Senate was built to govern, not to spend its time in endless deliberation, and the legislative filibuster makes that difficult, if not impossible. It does so in ways that typically disadvantage progressives and reformers, and which will cripple the next Democratic administration, as it nearly did the previous one. Any potential political danger — Republicans could easily attack an anti-filibuster push as the first step toward taking away our cars, cows and airplanes — is outweighed by the power that comes with being able to credibly connect the election outcome to a particular policy. Give me the votes, and I’ll give you this plan.
If Bernie Sanders and Kamala Harris and Kirsten Gillibrand or any of the other Democratic candidates are actually serious about their policy agendas, the only choice they have is to abandon their attachment to this arcane procedure and lead their party to a firm consensus against a rule that was never supposed to exist.
This article originally appeared in The New York Times.