fbpx

How the Filibuster Strengthens the Republic

The most important issue in Washington at the beginning of the Biden administration is not any specific policy, but a central structural issue of government—the fate of the legislative filibuster. Minority Leader Mitch McConnell recognizes this essential truth, which is why he tried to get a commitment not to eliminate it, only relenting when two Democratic senators said they would not abolish it. In contrast, it is shocking to see David Brooks blithely call for its elimination if the Republicans use it to “obstruct,” as if the purpose of the filibuster has not generally been for a substantial minority to thwart important parts of the agenda of a narrow majority. The Democrats used it in just that way during the Trump presidency.

The Senate filibuster, which now requires 60 senators to vote to end debate before legislation moves forward on the merits, has existed in some form through the history of that institution—a fact that should give a self-styled conservative like Brooks pause before giving up on it. It may become a victim of our extreme partisanship, but its elimination would undermine good governance. The filibuster makes our polity more stable, promotes across-the-aisle compromise, tamps down on polarization, and protects federalism. It does have some costs in terms of clear accountability, but those could be reduced by moving back to a regime in which senators would be required to hold the floor to prevent a vote on the merits.

One of the greatest concerns of the Founders was the instability of excessive democracy. Elections represent a snapshot in time. They capture the ever-fluid priorities and preferences of voters only at a given moment. For instance, the issues that motivated voters in 2020—Trump’s tweets and a recession-driven by the virus—may soon fade even as the representatives elected are empowered to pass vast amounts of legislation. As a result, at the next election, a new set of representatives returned in an election turning on a different set of accidents may repeal that legislation.

Such mutable laws have substantial costs. They make it hard for individuals and businesses to plan. They lessen the respect for law and government in general, as people become more likely to think that government does not know what it is doing. At a time when trust in government is near historic lows, confidence in our institutions needs to be husbanded, not squandered. A stable rule of law is one of the best ways to engender respect.

There is also another set of more extraordinary laws—such as entitlements or the admissions of new states to the union—that, once instituted, are hard to repeal and have huge consequences for the future, imposing costs on generations that are not voters and may be yet unborn. For instance, the additional social security benefits that Biden wants to provide are hard to take away and yet require future generations to pay for them. The filibuster is particularly important for this kind of law because they are constitutive of our nation going forward. As the supermajority rules for making our formal Constitution suggest, consensus is particularly important for laws that are difficult, if not impossible, to repeal.   

The filibuster also requires some bipartisan buy-in on legislation. It is rare that either party achieves a 60-person majority. As a result, the filibuster tempers polarization. Democrats and Republicans must persuade some senators of the other party to agree to move forward. They can do that through compromise—and that moves legislation to the middle.

To address the filibuster’s costs, we might go back to the old-style filibuster, which required senators to hold the floor for hours.

When there are greater incentives to compromise, polarization is likely to decline because each party is less likely to become furious about what it regards as the enactment of extreme legislation of the other side. To be sure, people on the extremes may get angry that they cannot get all they want. But while such citizens may seem a majority on Twitter, they remain a distinct minority in our nation. Moreover, the shrewdest theorists of those on the right and left recognize that a compromise today sets up an argument for a settlement tomorrow that leans even father toward their preferences.

The Senate filibuster also protects federalism. Now that the Supreme Court has largely gutted the original constitutional limitations on the power of the national government and the Seventeenth Amendment has severed the relation between senators and their state legislatures, the filibuster provides the most practical protection of state autonomy. States can choose to exercise or refrain from exercising their very substantial regulatory powers unless there is a consensus represented by 60 votes in the Senate to tell them to do otherwise. That allows citizens in the states of a diverse nation to be governed by rules more to their liking, as well as those that fit their social and economic conditions. To take an example from the Biden agenda, a fifteen-dollar-an-hour minimum wage would be unlikely to surmount a filibuster, because of concerns about disparate local impacts. Wages and cost of living are far from uniform across the states. Such a minimum wage would derange enterprise in states that the majority party can ignore because they are not elected from them. As a result, there is an effort by some Democrats to avoid the filibuster and pass the minimum wage by stretching a process called reconciliation, though it will probably fail.

The filibuster does have one substantial downside. It allows senators to evade accountability because they can filibuster a bill and yet say they never voted against it on the merits, thus confusing citizens who do not understand the intricacies of the legislative process. But this seems a relatively small price to pay for the major benefits of the rule. And the filibuster could be reformed to address this problem by requiring senators who want to delay voting on the merits to go back to the old-style filibuster, famous from Mr. Smith Goes to Washington, where they are required to hold the floor for hours. That dramatizes their position and opposition to the underlying legislation.

Others have argued that the filibuster is a problem because it exacerbates the unrepresentative nature of the Senate. Forty senators who represent a relatively small number of people can block legislation that the majority wants. But the effect of the Senate’s unrepresentative nature, assuming it is a defect, is not limited to the filibuster but infects everything it does. And without the filibuster, a narrow majority representing a relatively small minority of citizens could more easily get a bill through the Senate. It is true that the House could block it, but much legislation needs to be passed to keep the government running, and should small states hold a majority, they would have considerable leverage over the result.

Moreover, as a practical matter, it is does not seem that the makeup of the Senate substantially differs from that of the House of Representatives ideologically. Nor does it systematically favor Republicans. Of the twelve smallest states (those with either one or two representatives in Congress) six are blue states and six are red states. Of the ten largest states, five traditionally vote red, and five generally vote blue. In the last generation (since 1990), Democrats have performed slightly better in the Senate, controlling it 15 and a half years out of 32 as opposed to controlling the House for 12 years out of 32. The politically similar composition of the House and the Senate is also suggested by the ideological proximity of their median member when a party controls both houses.  

Defending the filibuster is not the same as opposing any reform of its practice. At one point the filibuster required a two-thirds vote to proceed to merits, and that proved too high a hurdle, prompting the move to the current 60 votes. Moreover, the Senate has eliminated the filibuster on motions to proceed to take up bills, thus streamlining its process. But the need for a modicum of national legislative consensus to encourage compromise, temper polarization, and protect the autonomy of states is as great as any time in American history. The filibuster in some form must endure to help stabilize our republic, particularly at this turbulent time.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 28, 2021 at 11:23:29 am

James Madison disagreed. He argued in the federalist that minority vetos were a cause of disunion. All the checks on unlimited democracy he argued for were themselves based on equality of the vote. The filibuster originally arose because there were no limits on how long a Senator could talk. As such it was in keeping with Madisonian principles. Once it became effortless veto of the majority, as it is now, it became an abomination in terms of our founding principles.

read full comment
Image of Gus diZerega
Gus diZerega
on January 28, 2021 at 11:48:49 am

I think this claim does not capture Madison’s complete views, as reflected in his support for many supermajority rules. Mike Rappaport and I describe that support here. See John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703 (2002). The Constitution is dominantly a supermajoritarian document.

read full comment
Image of John O.McGinnis
John O.McGinnis
on January 28, 2021 at 13:23:02 pm

Given genuinely extraordinary abominations such as Obama's seditious use of the national security apparatus, also the abomination that Obama's sedition went unopposed by most in Congress - abominations that are given the "move on, nothing to see here" treatment by the media-tech-political class - given these all too real abominations that have come to be complacently accepted - given this and much more that could be said (e.g., concerning "equality of the vote" in the recent election), it would be damn smart to maintain the institution of the filibuster. Since the issue at play here is the problem of balancing raw power dynamics within our variously failing and failed democratic and constitutional republic, even to the point where seditious maneuvering receives complacent disregard, it's a very good thing indeed to have recourse to the filibuster.

read full comment
Image of Michael Bond
Michael Bond
on January 31, 2021 at 06:19:23 am

McGinnis is indeed right that there is a need for a moderating system to keep in check the temptation by the majority to govern only for the majority. The slogan "A Protestant government for a Protestant nation" did great damage to the cause of establishing good governance even for the dominant protestant majority in Northern Ireland after the partition of the island of Ireland. After decades of misrule and blatant discrimination against the catholic minority, the army had to be sent in from London in 1969 to establish direct rule from London dismissing the locally elected Stormont government in the province. The problem with filibuster in the US Senate is that the Senate is already elected by a minority. States with population less than a million have the same number of senators as states containing tens of millions of citizens.

read full comment
Image of Curious
Curious
on January 28, 2021 at 15:25:28 pm

Give credit where credit is due.
McGinnis is quite correct in asserting that the filibuster serves as an effective moderating mechanism on raw power politics.
McGinnis is also correct when he asserts that Madison would have no problem with the filibuster contrary to the claims of some that wish to assert that Madison was primarily interested in the equality of the vote. I submit that the mere structure of the US Senate and its disproportionate weighting of numerical voters in favor of equal State participation belies the claim of Mr Dizerega.

read full comment
Image of gabe
gabe
on January 28, 2021 at 16:03:31 pm

Truly, the battle forming now on Capitol Hill will be a colossal contest of wills in a war between the titans. The clash of wills will be a struggle between the Democrats' will to power and the Republicans' will to resist that power. The outcome of that conflict of wills shall determine success or failure for the Revolutionary Democrat Party, as it wages de facto the first and only insurrection in America since the de jure insurrection of April 12, 1861, at Fort Sumter.

The Supreme Court's will to resist Congress and the President at their every point of unconstitutional attack and the will of Senate Republicans to filibuster to defeat each nation-shaking bill of Senate Democrats are the last constitutional barriers if the nation is not to be overrun in the next four years and forever ruined by the Revolutionary Democrat Party. Together, the Supreme Court Court and Senate Republicans comprise America's thin red line of national defense.

And thin it is, for but a mere two Senate Republicans, Senators Rand Paul and Ted Cruz, together with only five Justices, Thomas, Alito, Gorsuch, Kavanaugh and Barrett, can be counted as heroes to toe that red line and confront that enemy.

"But it's " Thin red line of 'eroes " when the drums begin to roll
The drums begin to roll, my boys, the drums begin to roll,
O it's " Thin red line of 'eroes, " when the drums begin to roll."

read full comment
Image of Paladin
Paladin
on January 28, 2021 at 16:16:28 pm

I think that Professor McGinnis is correct. I would offer the following:

Madison was inherently distrustful of pure majoritarian democracy. This may be inferred from Federalist 10 and 58. In the former he famously wrote

Hence it is that such [i.e. pure] democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

Earlier in the same letter, he argued

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.

It is at least plausible that the filibuster mitigates this tendency in elective bodies. In Federalist 58, Madison observes

[...]in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings...The countenance of the government may become more democratic, but the soul that animates it will become more oligarchic.

The unhealthy effects of these tendencies are arguably exacerbated by pure majoritarian rule. One may also note that, while Madison was aware of "factions," the precise evolution of the two party system which nationalized ideological interests, was still in the future. Madison's prediction in Federalist 10 that "[t]he influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states" did not age well. The filibuster provides at least some counterbalance to the mischief hyperpartisanship entails.

The current lack of appreciation for the necessity of at least some degree of consensus in public policy has likely been decades, at least, in the making, but was mainstreamed by the political ineptness of President Obama and his "I won" theory of governance. This resulted in the politically unhealthy fad of government by executive order, in which policy is hammered into place without the benefits of representative government, for the appeasement of insular interests, and in a transient manner that is subject to executive caprice. This enhances the possibility that the public will be subject to policies that they do not support, and consequently that they do not respect, and will doom to failure. The distinguishing characteristic of this folly is that not that the executive creates policy with this stratagem, but that he attempts to create change. Change should always require more introspection and consideration that maintaining the status quo; this is the whole point of Chesterton's fence. Ideological change, which is further hampered by the tendency of ideologues to disregard unintended consequences, is particularly needful of sober consideration, and benefits from the supermajority requirements.

Significant changes in policy should be made by representative bodies in consideration of all relevant interests. They should not be imposed with the subjective assessment of a single executive that "it is the right thing to do" or even a simple majority in an elective body that uses the fact of such majority as a substitute for necessary deliberation. Lasting change requires a degree of public consensus, beyond that of simple majoritarian whimsy. The fate of Obamacare, that passed on party-line votes and through reconciliation, is a good example of what could have been being degraded by ideological impatience.

The view that the filibuster is outdated, or that it is an impediment to progress is fallacious. To the extent that it serves to mitigate the passions and often foolish ideological fevers that sometimes afflict our political life, it is a good thing.

read full comment
Image of z9z99
z9z99
on January 28, 2021 at 16:56:07 pm

Professor McGinnis wins this argument, hands down and thumbs up. It is ridiculous to speak of "our democracy," as Democrats, the "Forever Stamps" of language abuse, are forever doing. Ours is a democratic republic, and the filibuster rule suits it perfectly.

The fact would be confirmed to honest disputants by the mere possession of basic knowledge of the founding, the constitution and American history, none of which, of course nowadays, is on a par of public importance with the high tower significance of learning anti-scientific gender theory and contra-factual race history, or mastering the arts of proper pronoun pronunciation and white privilege purification.

I would like to give the "one man, one vote" crowd the benefit of the doubt and assume they just don't know better, that the fault lies not in themselves but in the misaligned stars of their defective educations. But I know that they do know better and that they just don't care.

read full comment
Image of Paladin
Paladin
on January 28, 2021 at 19:27:55 pm

Z9's comment:
"The current lack of appreciation for the necessity of at least some degree of consensus in public policy has likely been decades, at least, in the making, but was mainstreamed by the political ineptness of President Obama and his "I won" theory of governance. This resulted in the politically unhealthy fad of government by executive order, in which policy is hammered into place without the benefits of representative government, for the appeasement of insular interests, and in a transient manner that is subject to executive caprice. "
AND from elsewhere:
"Despite decrying the overuse of executive orders during the campaign as dictatorial, on Wednesday, Joe Biden let loose another blizzard of executive orders. Just half a week into his presidency, CNN counted up 30 such orders coming from Biden’s Oval Office on a wide array of subjects. Biden has imposed so many executive orders that the nation, including the media, has no time to analyze or react to most of them."

One must ask, given the preference of the modern Federal Administrative State to rule by decree and the predilection of the President Emeritus Joseph R. Biden to not only deploy the "paper and pen" tactics of Obama but actually greatly exceed the rate of EO's issued by Obama, is it not both "necessary and proper" that there remain, at least, one counter-majoritarian tool to constrain unrepresentative or "mob" impulses of a transient majority?

There is another danger beyond the apparent, immanent AND imminent extra-legality of these dictates. It is this:
That the citizenry may very well lose that which is most precious in a democratic REPUBLIC - civic duty and a sense of agency in their own lives.
From Phillip Hamburger:
"Commenting on how Germans (and the "absolutism" of Administrative governance is of German derivation - my edit) were coming to feel dependent upon order imposed from above, Max Weber called them".Ordnungsmenschen" - [roughly translated as followers of rules].
Similarly, in this country,Americans are becoming accustomed to being ruled. This was Tocqueville's fear, and increasingly it is a reality. The danger is not merely the loss of civil liberties but the loss of the independent and self governing spirit upon which all civil liberties depend."

So first, we observe the Executive issuing binding obligations upon the citizenry without recourse to the Congress.
Secondly, we observe that the congress when he finally musters the initiative to craft and legitimate legislation, we find that the legislation itself is quite often the product of Administrative agencies, whose "expertise" they believe they must rely on (see Obamacare, etc). again, agency expertise generates new binding obligations upon the citizenry. Quite often, this expertise is enlisted in support of the ideological and pedagogical predilections of one Party. Now with that Party in a transient ascendance, how, if at all, will the dicta of the experts be countered.
The filibuster is the last remaining mechanism for moderation in our legislative politics.

BTW: One should also point out that the mere accumulation of data, scientific, social or cultural and duly accredited with various academic degrees does not a) afford one "expertise" above and beyond that which is present in the citizenry itself, b) date is not wisdom or even knowledge, c) where such field / discipline specific knowledge does exist, it does not provide expert, or even common knowledge in either related or distant disciplines and d) as "experts" have a preference for their own disciplines and its methodology and goals to the EXCLUSION of other disciplines, it serves as an obstacle to providing policy prescriptions that have effects broader than those encompassed by the particular discipline of those experts.
In short, "Stay in Your Lane."
Both the Executive and the Legislative (also the Judicial) ought to accept "expert" advice but ought NOT to permit the "experts" to make rules and binding obligations. Policy must be made by representative officials.
One hopes that the now Beatified Dr. Anthony Fauci is reading this as the CDC under this "expert" is the best exemplar of expert "lane crossing" that I have ever observed.
Finally, in a sense The Trumpster attempted to institute a "filibuster" (of sorts) on the Administrative Agencies. One of his last acts was to mandate that any agency rule that would impose obligations upon the citizenry must be approved and signed by an Agency Head or sub-head.

And we find, the likes of academics such as Whirl claiming that The Trumpster had little respect for constitutional norms.
BALDERDASH!
And Cheers for McGinnis!

read full comment
Image of gabe
gabe
on January 28, 2021 at 22:26:28 pm

Gabe, recall that Professor Wirl was addressing the pros and cons of our domestic peace, but perhaps in a future essay he will address whirled peas.

Filibuster! Where did that name/word come from? Ah, the Internet says free booter to flee-booter to filibuster: https://www.npr.org/templates/story/story.php?storyId=4656990

But the Framers provided a marvelous balance in the Congress between the strong and passionate interests of "the people" expressed in the House and the "gray beard" deliberation and braking to be provided in the Senate. If they did not formally include some sort of supermajority criterion for passing laws in the Senate, we can be glad someone decided such an idea had merit. Once again balancing the need to "do something" with the need for the resultant laws to be respected if they were to be successfully implemented. I wonder if they ever considered adding supermajority criteria for the House.

So while the Founders were great students of human nature as "not angels", when they provided for a limited government that would little impose on a self- reliant and independent populace, they were expressing support for those of the "leave me alone" inclination. But they apparently failed to reckon with those who cannot leave others alone, the Progressives. And when the imprimatur of Wilsonian administrative expertise is added to the Progressive's mix, we end up with the "do something" passion that looks to government for solutions often best left to mere social strictures. Almost any solution, so long as it is provided by Government. The filibuster is clearly one weapon to help protect against such over achievers' claims of "I Know What To Do!"

read full comment
Image of R2L
R2L
on January 29, 2021 at 07:50:15 am

Why all the fuss? Of course the filibuster is legitimate! It is supported by and consistent with the reasoning and wording of the constitution and 200 years of American electoral, Congressional and political history. I fail to appreciate or sympathize with the willingness of conservatives (and even tiresome classical liberals, who think everything should be debated with anyone under all circumstances) to debate opponents on the matter, since opposition is so patently marked by sheer political expediency. Conservatives should not follow naive liberals and make the mistake of engaging in serious debate with the Left when the Left, as with the filibuster, is intellectually dishonest, not serious.

Filibuster provides only the potential for forming a thin red line. To man that line it is imperative that the Trump base bolster the will of Senators, else all is naught. We need more of the Seeb Cooley's of fiction and far fewer Mitch McConnell's in reality.

read full comment
Image of Paladin
Paladin

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.