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Speaking up for the Filibuster

The filibuster is one of the great bugbears of American politics. Democrats and Republicans have routinely blamed the infamous practice when the Senate fails to act on their policy priorities. In both parties, senators have denounced the filibuster as illegitimate when used by their colleagues to slow action on favored presidential nominations. And Democratic and Republican majorities have both circumvented the Senate’s rules in recent years to advance those nominees by limiting senators’ ability to filibuster them.

Former President Barack Obama recently referred to the practice as a relic of the Jim Crow era to make abolishing it easier. Speaking at the funeral of John Lewis, Obama called on the Senate to honor the civil rights icon and former congressman by ending the filibuster, if necessary, to pass legislation like the John Lewis Voting Rights Act.

The symbolism of Obama’s plea amidst the nation’s current racial unrest is especially striking. America’s first black president calling on senators to fight racial injustice by abolishing the filibuster in his eulogy for one of the leading figures of the civil rights movement makes it harder for the filibuster’s proponents to defend the practice. Cast in such terms, the filibuster becomes the parliamentary personification of racism in America.

Yet the assumptions underlying these depictions of the filibuster are deeply flawed. While southern segregationists filibustered civil rights legislation during the Jim Crow era and the Senate has struggled to legislate more generally in recent years, the filibuster is incidental to both phenomena. The filibuster itself did not make Jim Crow segregation possible. It is not the cause of the Senate’s current gridlock. Consequently, abolishing it will not compensate for decades of racial discrimination. It will not automatically create the conditions for senators to pass legislation combating racial injustice. Instead, the current debate over the filibuster distorts the real legacy of Lewis’s career and the movement he helped lead.

Understanding the Filibuster 

Implicit in Obama’s critique of the filibuster is the assumption that Senate majorities cannot pass legislation over the minority party’s objections. This is because the Senate’s rules do not empower a majority to end debate on a bill as long as a senator wants to speak on it. Obama’s Jim Crow suggestions notwithstanding, the Senate first permitted unlimited debate on legislation and nominations in 1806. A consequence of that decision was to empower a minority of senators to filibuster or block legislation supported by the majority as long as those senators were willing to speak on the Senate floor. In 1917, the Senate adopted a rule to end a filibuster by invoking cloture on a supermajority vote.

The ability to end debate by invoking cloture has altered how today’s Senate does business. Instead of trying to wait-out filibusters as in the past, today’s majorities try to invoke cloture. Consequently, a filibuster at present permits a minority of senators to block a final vote on a bill because the Senate’s rules require more votes to invoke cloture (typically 60) than to pass legislation (typically 51).

But the filibuster was not always understood to operate in this way, even after the Senate adopted the cloture rule in 1917. In the past, the filibuster helped to facilitate negotiation and compromise among senators. That is why legislation approved by the Senate often included minority-favored provisions in addition to those supported by the majority. However, today’s standard view is that rising polarization and partisanship have made it impossible for senators to compromise with one another. Such forces increased the distance between Democrats and Republicans and, in the process, changed fundamentally the nature of politics inside the Senate. As the gap between the two parties widened, the filibuster morphed from a source of leverage that individual senators could use to facilitate compromise into a veto that Senate minorities could use to block legislation favored by the majority.

But the filibuster is not a veto. Consequently, it can never level the playing field between the majority and minority parties in a debate. Instead, the filibuster merely grants a senator (or senators) the opportunity to speak on the Senate floor for as long as possible. Using it to obstruct the majority on a systematic basis requires that minority-party senators be willing to expend considerable effort to succeed. The filibuster cannot cause gridlock in a debate of reasonable length because no two sides in a legislative debate are evenly matched in terms of their members’ effort. One group of senators must always prevail at the conclusion of a debate. In situations where the minority party prevails, its members successfully altered the terms of the debate such that a majority of senators were unwilling to expend the effort required to prevail in it.

Today’s opponents of the filibuster share a distorted view of the Senate. They see it as a factory whose purpose is to produce legislative widgets.

Understanding why the filibuster is not a veto requires a closer examination of how the procedure operates. Of course, a senator may temporarily delay their colleagues from voting by speaking on the floor. However, a senator cannot prevent them from voting in perpetuity, strictly speaking, because they cannot speak indefinitely. This is because of the physical and opportunity costs filibustering senators must bear and the procedural limitations on senators’ ability to filibuster in the Senate’s existing rules and practices. When a senator is no longer able to speak, they have no choice but to yield the floor. At that point, the Senate votes on the underlying question unless another senator seeks recognition and then speaks for as long as possible. While the length of the Senate’s business delay is proportional to the number of senators who participate in a filibuster, there is no point at which that business gets delayed indefinitely since individual senators can only speak for a finite period. When no senator seeks recognition in a debate, the Senate must vote.

The cloture rule leads today’s Senate majorities to forgo such effort-intensive activities to end filibusters. When combined with the two-track system, the rule allows senators to process other business while waiting for cloture to ripen for a vote. But the majority party does not have to use the two-track system or the cloture rule to end debate on a measure. And the Senate’s present gridlock indicates that senators are not processing other business while they wait for cloture to ripen on a bill. If a Senate majority or supermajority wants to end a filibuster, requiring the minority of senators who do not want to end debate to hold the floor and speak is just as effective in overcoming their filibuster as invoking cloture.

The majority leader doesn’t call the minority’s bluff and force its senators to filibuster because doing so takes effort on the majority’s part. It also injects a degree of free-wheeling decision-making into a process that the majority leader would much rather control. Finally, forcing unsuccessful cloture votes gives the majority leader an opportunity to attack the minority party as obstructionist during election season.

This is precisely how the Senate legislated before it adopted the cloture rule to end filibusters in 1917. Throughout the 19th century, Senate majorities routinely passed significant legislation over a minority’s objections in the absence of a rule to end debate. The filibuster did not operate like a veto because senators understood that filibustering was a costly activity. A minority of senators could not prevent the majority from acting as long as the latter’s members were willing to expend the effort required to legislate. The only exception to this general rule was at the very end of a two-year Congress when the limited time left to legislate meant that filibustering’s physical costs were lower. Yet even in such circumstances, it is nevertheless misleading to suggest that a minority vetoed the majority’s decision to act.

The Job of the Senate

Today’s opponents of the filibuster share a distorted view of the Senate. They see it as a factory whose purpose is to produce legislative widgets. Senators become, in their minds, craftsmen who apply technical knowledge to make those widgets. Like all production processes, their work follows a pre-existing blueprint designed by someone else in another place and time. From Obama’s perspective, the consequence of debate inside the Senate is to give a voice to people with whom he disagrees and to delay passage of legislation he deems essential.

Abolishing the filibuster will not, by itself, end the Senate’s current dysfunction. This is because politics is not a production process. The Senate cannot be understood in terms of the organization of the political means of production. And senators cannot be conceptualized accurately as craftsmen or workers on a production line. Consequently, outcomes in the Senate cannot be known in advance. Instead, they are determined by individual senators participating in an activity that takes place, for the most part, inside the Senate. Legislation passes there due to the decisions those senators make as they act and react to one another throughout a debate.

Obama’s critique of the filibuster is, ironically, at odds with how John Lewis understood politics. He embraced the give-and-take of democratic politics. In an essay written shortly before his death, Lewis acknowledged, “Democracy is not a state. It is an act.” He noted that “voting and participating in the democratic process are key.” The civil rights movement he helped lead aimed to increase black Americans’ ability to participate in politics outside Congress. And his career on Capitol Hill serves as a testament to the importance of black Americans participating in politics inside Congress. To the extent that the filibuster empowers all senators to speak on the Senate floor for as long as they are able, it enhances their ability to give voice to the concerns of black Americans outside the Senate and to fight for policies to address those concerns inside it.

The filibuster is not inviolable. Senators are entirely within their rights to limit it or abolish it entirely. However, current arguments in favor of doing so are misleading. Underpinning them is the implicit desire to do away with politics inside the Senate altogether. The filibuster empowers individual senators to participate in the legislative process on behalf of their constituents. It is not a veto. It does not cause gridlock.

Consider the 1953 description of the legislative process by political scientist Bertram Gross. According to Gross, compromise agreements arise out of the “development of the group struggle itself, for the vicissitudes of this struggle create the conditions that promote cooperation and make it possible.” In short, the process of disagreeing makes agreements easier to reach. That process also produces stable outcomes by reconciling losers in a debate to the fact that they lost. For example, Richard Russell led the Senate’s filibuster to stop the Civil Rights Act of 1964. But Russell also accepted the outcome of that debate as legitimate. He urged his fellow southerners to do so as well. 

Contrary to Obama’s plea, Lewis’s legacy is best honored by ensuring that all senators have the ability, in Lewis’s words, “to stand up, speak up and speak out.”

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 August 17, 2020 at 12:56:25 pm

"Legislation passes there due to the decisions those senators make as they ACT and react to one another throughout a debate."

It would appear that ACT is the operative term and what we observe is nothing more than a "passion[less] play" with each cast member assigned their respective roles and dialogue.
What only matters is "the count" - All else is predetermined.

Wallner's essay would have been appropriate when the Senate, and the House actually served as Legislative instruments and not as ombudsmen for the Executive agencies, behind which the Senate and the House mask their insincerity, ineptitude and their dissembling.

Filibuster WHAT?
Does it matter if we witness a three act, three hour long play or one that is interminable longer?

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Guttenburgs Press and Brewery
on August 17, 2020 at 16:25:40 pm

The filibuster analysis is unduly confusing, but I get the point and disagree. The moral grounds and common objectives underlying the politics of olden days in which the filibuster fostered compromise are dead. Nowadays compromise is impossible on fundamental matters that fundamentally divide the parties' different and existentially-opposed bases. Thus, requiring 60 votes to pass legislation in the face of a filibuster accomplishes one thing. It precludes the majority party from enacting the president's and the Senate's objectives. This was demonstrated most painfully by the failure of the Republican Senate to accomplish anything but judicial confirmations and tax reform (neither facing a filibuster) while Republicans held the House and the Senate from 2016-2018. Senator McConnell knew that President Trump's legislative agenda hung in the balance and would be stymied unless McConnell supported repeal of the filibuster. McConnell also knew or should have known that when the modern Democrats of the new "Revolutionary Democrat Party" take power they will end the filibuster and rule the Senate with 51 votes. Obama's recent political speech at Lewis' funeral is a clear sign that, indeed, that will be the case should the Democrats take the Senate in November. Thus, McConnell's Senate majority accomplished only a fraction of what Trump had hoped for and what it should have achieved. To save the filibuster McConnell allowed most of Trump's legislative program to die and, for nothing, Senate Republicans squandered a golden opportunity to achieve great conservative reform. The "gentlemen's club" of Establishment Republicans, one again, was played the fool by the far more savvy and politically-unprincipled Democrats.

As far as the crass Obama invoking the memory of John Lewis to support the repeal of the filibuster, I would note that, while he lacked McCain's pretense of integrity, Representative John Lewis was very much like Senator John McCain in one way. In his youth Lewis, like McCain, reached once for the ring of heroism only to spend the ensuing decades of his life proving himself a Hollow Man. The John Lewis of 2020 was a politically-unprincipled, race-hustling demagogue who in a New York minute would have done away with the filibuster or any other impediment to the modern Revolutionary Democrat Party's objectives.

Burke said of Parliament in 1770 what must be said of all Democrats and a majority of Republicans in Congress today: "Our judgments stink in the nostrils of the people. They think us not only to be without virtue but without shame." Amidst such moral desuetude and political stench, rules for eliciting political civility, common decency and uncommon honor are not just quaint and outdated, sadly, they are dangerous when one party will not abide by them.

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paladin
on August 17, 2020 at 17:48:32 pm

Got sidetracked before BUT.....
"“to stand up, speak up and speak out.”

No doubt the *elder* Mr lewis intended for ONLY certain people to "speak up, and speak out."
That is to say, that he too became as Paladin asserts, a "race hustler" and it was only in furtherance of this ever elusive and ever MORE EXPANSIVE definition of "racial justice" that one would be "permitted" to speak.

And again, why does an essayist on a site such as LLB cavalierly accept the proposition, proposed by the radical and illogical Left, that "racial justice" is something that must be achieved or attained. What in the world does that actually mean? Provide me a definition that is something more deliberative, more considered, less envious and even MINIMALLY more well reasoned than "Well, you white bastards have more than me AND justice means that I should have the same as you."
Why do purported conservative commentators casually introduce, if not implicitly accept, such Leftist propositions / fallacies as "systemic racism" or "racial justice" without effectively and fervently countering such assertions with a simple request to define the terms, to argue that "justice" is different than "sentiment." By that I mean both that justice is confined to the positive law, to constitutional commands, all of which have demonstrated that "justice" in the USA is supposed to be "colorblind" and affords ALL citizens ample recourse to the law, both positive and natural.
This, however, is NOT enlough for the envious, the "mal-educated" idiots praised by the communications media-Democrat Party as our new Young Warriors for Social Justice.
By "sentiment" I also mean that no matter how well suited is the positive law of the land to "justice", there is no moral or legal equivalence with the sentiment of the citizenry. I (editorial "I") can not be compelled to like those who despise me for my alleged "privilege", quite frequently absent in the lives of working class / poor whites, who allege that I am also complicit in events that occurred 150 years ago.
It is saidth at the way to a mans heart is through his stomach. Perhaps, the way to a citizens "sentiment" is not through diatribe, abusive and discriminatory language, such as is engaged in by BLM, Antifa and the "effin" professoriate but rather through an understanding of natural law / justicea nd a considered review of one's own failings.
Compare, in an accompanying essay today at LLB, " A Justice for our Time," the "sentiments" expressed by Justice Thomas, an unrecognized (except by the right) hero of American Law / culture and evidencing intellectual achievement and rigor that the envious malcontents / miscreants ACTUALLY should envy.
Which is more likely to afford opportunity to those who would both seek it and labor rigorously to attain it.

Every time a conservative commentator FAILS to address the fallacious reasoning behind this ILL defined concept of racial justice, we fail to seize an opportunity to educate the citizenry on the illogic of the claims, on the illegality of those same claims while providing implicit acknowledgement of the validity oft hose claims.

Fight every single instance of this.
Cease to accept and include in one commentary such ludicrous and ill-defined, if not impossible to define, claims such as "systemic", institutional, pervasive racism.
First tell me what IT is!
NOT HOW YOU FEEL IT IS OR SHOULD not BE.

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gabe
on August 17, 2020 at 19:26:42 pm

Whatever you were doing while sidetracked, you ought to do more of it.
When you finally got here, your remarks were on fire! Good comment.

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R2L
on August 17, 2020 at 20:18:34 pm

This whole discussion of the filibuster is something of a side show to the real issue and principle that I have seldom seen discussed. Why is the threshold for passing most legislation set at 50% plus one? I gather this is a carryover from the Greeks voting by placing black and white stones in a jar, but if true, why did they select this as their decisive threshold?

For a society to remain civil most of the time and actually do or get anything done, well over 90% of the populace must at least tolerate, if not really accept, whatever the rules of the law are. We don't lynch doctors who perform abortions even if the rationale for doing so might be more valid than the lynching of any black during the Jim Crow era. Most of us most of the time pay our taxes, forego most opportunities for rioting, don't steal from or defraud our neighbors or customers/ clients or senior citizens, etc. We comply with the law(s) in part because failing to do so can lead to adverse consequences. We also perceive that if a "majority" (as citizen voters and/or as republican representatives) have agreed to a given position, maybe they see/saw things that we did not, but in any case we are obligated to follow what has been thus decided.

But if the goal is true rule of law, then maybe only those laws that pass via some super-majority (60%, 66%, 70%?) are the ones most of us would really want to see passed. If a legislative proposal cannot garner at least that additional level of support beyond the conventional 50%, then maybe it is not really good legislation or ready for prime time in a given society at a given time and place. Yes, then a minority can prevent passing what many (short of the super majority) want to see enacted, and so there will be happy and not happy parties on both sides of the voting outcome. But we already have that with a 49-51 threshold now. And more people grumbling about those blankety blank politicians in office and the mediocre to vile nature of our fellow citizens who disfavor or prevent what we ourselves prefer.

The converse issue is clearly that if a law has previously been passed via super majority (say the 18th Amendment) then 20% plus of the voting group must have changed their minds to later repeal or overturn that law (21st Amendment). One aspect of this approach that might be beneficial is to break up large legislative documents into discrete and smaller subsets that could be more "socially digestible" by a larger fraction/ faction. More law would be created on the merits rather than as a trade-off and compromise between opposing positions.

Progressives want government rules applied in abundance, and conservatives prefer to distance themselves from any unnecessary or excessive constraints, but I want to believe than the set of Democrats who are not yet demented totalitarians would also like to have whatever laws they do get passed be readily accepted by a larger fraction of the population. If I am naive or dreaming, fine, but I would like to see more discussion of this issue or learn more about why this idea has no chance of ever becoming reality (aka, is deeply flawed).

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R2L

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.