Death To The Filibuster!
If everything breaks right in November, we can make the Senate great again
In March of 1949, liberals in the U.S. Senate made the first, extremely modest, effort to change the rules governing the filibuster. Ever since President Harry Truman had begun sending civil rights legislation to Congress in 1946, Southern senators had used the chamber’s rules to prevent debate. They had even used the filibuster to prevent debate on changing the filibuster. The bipartisan Hayden-Wherry bill would have simply extended cloture–a vote to end debate–to procedural issues like efforts to change the body’s rules. The South then filibustered that. Richard Russell of Georgia, leader of the Jim Crow forces, then proposed a “compromise” that ultimately passed: cloture would cover procedural motions, but it could be invoked not by a vote of two-thirds of members present, as was then the case, but by a vote of two-thirds of all members. Russell would henceforth wield that club to bludgeon every effort to consider civil rights legislation the South opposed–or to change the rules–until the passage of the 1964 Civil Rights Act.
In the three-quarters of a century since that first timid effort at reform, the rules governing the filibuster have changed many times but are now, incredibly, even worse than they were then. Conservatives have deployed the device, or even the threat to deploy it, against any and all legislation they oppose, often reducing the Senate to a deadlock machine. There may be no other mechanism that has done so much to convince voters that the system is broken. For that reason, there may be no single reform that could do more to increase faith in democracy than abolishing or significantly curbing the filibuster. And as Democratic prospects have brightened with Kamala Harris at the head of the ticket, that prospect has become at least imaginable.
End It, Don’t Mend It
In January 2022, the Democrats again tried, ever so gingerly, to change the rules, proposing that voting rights legislation for which they had cobbled together fifty votes should be exempt from the filibuster. But Senators Joe Manchin and Kyrsten Sinema, who had signed off on the bill, opposed the rule change, and it failed 52-48. That killed both rules reform and electoral reform at a single blow. But Manchin and Sinema have both announced their retirement. If, somehow, the Democrats can hold on to endangered seats in Ohio, Montana and Arizona, and keep all the others that are thought to be in play, the Senate will be divided fifty-fifty–with the Dems gaining the tie-breaker if Harris wins the presidency. (Of course the Democrats still may not be able to pass much legislation if they don’t also regain control of the House.)
A president Harris will have to make ending the filibuster a top priority. Her agenda on climate, electoral reform, health care and virtually everything else that does not involve lavishing billions of dollars on red states will be stillborn so long as she needs sixty votes. She would then have to resort to executive actions, as President Biden has done, which not only offers limited opportunities for progress but plainly distorts our constitutional design. The filibuster is a legislative tool that has had the effect of disabling our legislative branch. People think the system is broken because it is broken.
It’s important to understand how “reform” has made this weapon even more dangerous than it used to be. In the post-Watergate spirit of 1975, liberal Democrats led by Walter Mondale reduced the threshold for cloture from 67 votes to 60, but agreed that senators would no longer have to hold the floor to prolong debate; they could simply signal their opposition and the bill in question would be moved to a back burner. The goal was to allow the Senate to continue functioning in the face of a filibuster, but the effect was to facilitate obstruction by making it easy and anonymous. Richard Russell needed the discipline and organizational skills of a Big Ten football coach to keep his forces occupying the floor. Mitch McConnell doesn’t have to be either as skilful or as public as Russell; he can kill legislation with his pinky.
Nothing in the Constitution indicates that the Senate should be a less majoritarian body than the House. We regard it as the more “deliberative” body, the saucer in which hot legislative tea from the more rash chamber is allowed to cool, because it was designed to be more insulated than the House from popular opinion, since members originally were chosen by state legislatures. That principle gave way to democracy more than a century ago. The filibuster is simply one of the body’s rules, first adopted in 1805 and rarely used until a determined minority began staving off civil rights bills. It should be abolished altogether. The United States will never adopt a parliamentary system, which is structured to allow the ruling party or coalition to fully implement its agenda. A fully majoritarian system would at least allow the party with the most popular support to do what voters elected it to do.
Or If We Do Mend It. . .
But fifty Democratic senators are not going to vote to do away with the filibuster altogether. (Nor will any Republicans at all.) The fact that in 2022 majority leader Chuck Schumer only tried to get his colleagues to sign on to a “carve-out” for one piece of legislation shows how sensitive the issue is. Nobody wants to be a potted plant once they’re in the minority, the way their House colleagues are, though members will dress this up in high-minded palaver about the democratic process. But single-issue carve-outs are a poor substitute. The Senate already has 161 such exceptions, and most of them make life easier for Republicans–above all the budget “reconciliation” process, which allows simple majorities to pass spending bills and tax cuts.
In the 1950s, frustrated liberals proposed all sorts of reforms short of abolition, such as keeping the two-thirds rule for the first 48 hours of debate, then lowering the threshold for fifteen days–and then ending debate. Variations of the sliding scale remain in circulation, as do carve-out proposals and a “popular-majoritarian” scheme that would end debate when senators who propose to do so represent a larger share of the population than those on the other side. But by far the most popular suggestion is, believe it or not, a return to “the talking filibuster,” the very system that Richard Russell used to preserve Jim Crow. Both Joe Manchin and Joe Biden endorsed such a change. Jeff Merkel, the leading Senate advocate for reform, advances the same idea in Filibustered: How To Fix A Broken Senate and Save America, a book he co-authored with his former chief of staff, Mike Zamore.
It’s a dispiriting sign of how deeply entrenched this practice is that the most zealous reformer hopes to return to the status quo ante of 1950. Merkley argues that a modified version of the old system would allow minorities to be heard, give both sides incentives to negotiate that they now lack and would appeal to Senate “institutionalists.” (See Merkley talking through his plans here.) He insists–not very convincingly, to my mind–that only under rare circumstances will legislators pull out all the stops as they used to, speaking in relays all night and forcing opponents to be ready at any moment for a quorum call. Nevertheless, a return to the talking filibuster is probably the least bad idea with a chance to pass.
The old system had some real virtues that the new one lacks. In 1964, Southern senators had to publicly defend their system of racial apartheid. Americans didn’t buy it, and Democratic whip Hubert Humphrey was finally able to peel off enough moderate Republicans to defeat the filibuster. Rarely has Senate debate offered such thrilling drama. Humphrey’s lieutenants ensured that none of their troops strayed too far from the Senate floor so they could return to defeat a quorum call that would have ended the session. Finally equal to the great Russell, Humphrey virtually lived on the floor for three months and took out so little time to eat that he lost twenty pounds. In the minutes before the cloture vote, assured of victory, Humphrey magniloquently quoted Shakespear’s Henry V: “You will be able to tell your children that you were here on this day.”
I’ll go for the talking filibuster if we can have that kind of talk.