Kill the Filibuster?
Is it time for Democrats to exercise the "Nuclear Option" and end the longstanding Senate tradition?
By Brendan Wilson
For two hundred years, Senators have been taking the floor to read from the phonebook, tell children's stories, and wax poetic about their favorite fried chicken recipes in a procedural hissy fit called the filibuster.
For this we can thank the Romans, who taught us that anyone opposing legislation, but lacking the votes to defeat it, can speak until everyone tires and goes home for... fried chicken. Of course, the rules of the modern filibuster are more complicated. Most legislation passes with a simple majority, but 60 votes are required to bring an end to debate. A Senator against a bill can speak ad infinitum to prevent the vote from ever occurring unless 60 colleagues decide to stop him.
With Senate Republicans signaling their opposition to the key planks in President Biden’s platform, the chorus from the progressive left calling for an end to the filibuster has reached a fever pitch. Barrack Obama called for scrapping the “Jim Crow relic” in order to enact key progressive initiatives. Senator Elizabeth Warren recently added, “We still need to pass the minimum wage, and if that means getting rid of the filibuster, so be it."
It’s easy to understand Democratic hostility towards a practice that allows the minority to hijack their legislative locomotive and run it off the tracks. But before we proceed, some trivia:
“The Senate must end the filibuster rule and get down to work.” Who said it?
a. Jeff Merkley (D – Oregon)
b. Chuck Schumer (D – New York)
c. Donald Trump (R – Mar-a-Lago)
d. Elmer Fudd (I – Toontown)
If you chose a Democrat or a wabbit hunter, I wegwet to weport that you are wong. It seems that the filibuster is not just a Democratic boogeyman, but a thorn in the side of the party “enjoying” a narrow Senate majority. The fact is that the filibuster has bled both donkeys and elephants, and both parties have, at varying times, favored its demise.
So what gives? How did this peculiar tradition come about and does it continue to serve a useful purpose in our polarized legislature?
What we now call the filibuster was popularized by the Roman statesman Cato the Younger, who was said to have spoken for hours to prevent votes on tax collection and pretty much any law advanced by his nemesis, Julius Caesar. As much of Roman republican DNA is traceable in our own civic makeup, the same incessant debate popped up in the early days of United States Senate deliberation. In 1789, Pennsylvania Senator William Maclay lamented the propensity of southern senators to “talk away the time, so that we could not get [a] bill passed.”
But during our government’s first two decades, debate could be closed, and talkative senators silenced with a simple majority vote. This tidy rule, however, was later scrapped at the behest of the patron saint of political outcasts: Aaron Burr, (sir).
However, ceaseless debate was not wielded as an obstructionist weapon until 1841, when John C. Calhoun discovered that he could block a bill chartering a national bank by arranging a series of endless speeches. After this, the practice became common enough to earn it a name, the filibuster, derived from the Dutch word for the mercenary pirates laying waste to commercial vessels in the Atlantic Ocean.
Calls to curb the filibuster were rebuffed until 1917, when Senator Robert La Follette used it to block a bill allowing American merchant ships to arm themselves against German U-Boat attacks. An enraged President Woodrow Wilson demanded a rule to prevent a “little group of willful men” from halting the legislative process during wartime. The Senate voted to adopt Rule 22 establishing “cloture,” cutting off debate with a two thirds vote.
But two thirds is still a high threshold. Segregationist senators were able to use the filibuster as a billy club to pummel legislation threatening the racist Jim Crow order of the South. In fact, the filibuster record is set by Senator Strom Thurmond, who sustained himself on “pumpernickel and bits of hamburger” to speak for over 24 hours to block the passage of the Civil Rights Act of 1957.
As Congress grew busier, its leaders realized that marathon speeches were gumming up the gears of Senate operations. Necessary reform was finally agreed to in 1975, when the cloture threshold was lowered to 60 votes and the rules were adjusted so that Senators could threaten legislation by merely signaling their intent to filibuster. The “speaking” filibuster was replaced with the “paper” filibuster, sparing Senators the need for long speeches, adult diapers, and pumpernickel. With filibustering made easy, its use skyrocketed.
While some senators still opt for the traditional filibuster today, the implied threat is enough to require 60 votes for any non-fiscal legislation. This threatens to derail the agenda of any incoming president with a majority in Congress. With political gridlock at an all time high, calls have increased to kill the filibuster by invoking the “nuclear option,” an evocative term implying that the party that abolishes the tradition will live to rue the day when their opponents regain power.
In fact, Democrats amended Senate rules to nix the filibuster for non-Supreme Court judicial nominations under Obama. The Republicans responded by canceling it for Supreme Court nominations under Trump. Brick by brick, we seem to be moving towards the full dismantling of the filibuster.
But this would be a terrible idea.
Should the filibuster be squashed, the number of partisan bills passed by each new administration would explode. Without the need to compromise with members across the aisle, the gavel would drop for bill after bill without end. Think of the 60 vote cloture threshold as a dam stemming the flow of hasty legislation through Congress. Killing the filibuster would break the dam and drown the country in a flood of rash, partisan laws. If keeping it in place means that an incoming administration enacts less of its platform, so be it. Our founders intended some semblance of limited federal government.
The filibuster also prevents the “Yo-Yo” effect. Without a minority veto, new administrations will enact a salvo of partisan legislation, only to have it completely reversed with a changing of the guard four years hence. We as a nation, both institutions and individuals, require time and effort to adjust to new laws and regulations. Imagine how traumatic an enact-repeal-enact-repeal cycle of Obamacare would be for the health care industry.
Finally, the passage of sweeping legislation counter to the wishes of the 49% hardly qualifies as majoritarian. Law making in this manner degrades trust and fans the flames of antigovernmental passions. Yes, recent gridlock in Congress has prevented the compromise required to overcome a filibuster, but when the players on your team stink, you don’t change the rules of the game, you cut the Sam Darnolds and draft smarter next year. Besides, each of the last three presidents have overcome gridlock to pass landmark legislation, notable examples include Bush's No Child Left Behind, Obama’s Dodd Frank, and Trump’s Cares Act.
The filibuster serves a valuable purpose. James Madison once described the Senate as a “necessary fence” against the “fickleness of passion” that characterizes the teenage whims of the House. Killing the filibuster flattens this fence. Let it stand.
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