The filibuster has no redeeming virtues
The filibuster, Sen. Mitch McConnell (R-Ky.) insists, is essential to our constitutional order. Invoking what he called “centuries-old wisdom,” McConnell claimed in 2019 that the rule in the United States Senate “makes new laws earn broader support than what is required for a bare majority in the House.” This year, he predicted that an end to the filibuster would “drain the consent and comity out of the institution,” poison relationships between Democrats and Republicans, and “a scorched-earth Senate would hardly be able to function.”
A review of the uses of the filibuster throughout American history reveals that Sen. McConnell is wrong. The filibuster has not — and will not — spur cooperation or consensus.
The United States Constitution, which enumerates the very few issues for which supermajorities in the Senate are required — ratification of treaties, overriding presidential vetoes, impeachment, and amending the Constitution — does not mention the filibuster. “A system where the minority overpowers the majority,” Benjamin Franklin declared, “would be contrary to the Common Practices of Assemblies in all countries and Ages.” George Washington probably did not say “we pour our legislation into the senatorial saucer to cool it.”
Until 1806, the president of the Senate had the authority to call “the previous question,” and a simple majority could then end debate. The filibuster was first used by Sen. John C. Calhoun (D-S.C.) in 1841. Realizing that (for reasons lost to history) the Senate had ended the previous question rule, Calhoun stalled legislation rechartering the Bank of the United States and (in 1848) banning slavery in the Oregon territory. Before 1880 almost every filibustered measure (including Calhoun’s) was eventually passed by the Senate.
By the turn of the 20th Century, the use of the filibuster had increased. The practice became institutionalized in 1917, just before the United States entered World War I, when Sen. Robert La Follette (R-Wis.) and several colleagues filibustered a bill arming U.S. Merchant Marine ships. Decrying the actions of “a little group of willful men,” President Woodrow Wilson lamented that the Senate “is the only legislative body in the world which cannot act when its majority is ready for action.” In response, the Senate adopted Rule 22, which mandates a two-thirds vote for “cloture” to end debate. Between 1927 and 1962, the Senate tried to invoke cloture 11 times.
In the 1940s, ‘50s and ‘60s, the filibuster was used almost exclusively by southern Democrats to block anti-lynching and anti-poll tax bills and civil rights legislation. Barack Obama recently characterized the tactic as “a Jim Crow relic.” In 1975, the number of votes needed to end debate was reduced to 60.
Since the 1980s, senators have been allowed to put a “hold” on a bill without having to speak continuously on the floor of the chamber in a “talking filibuster.” Designed to allow the Senate to consider other legislation during this time, this “silent filibuster” (which is practically invisible to the public and the media) has meant, in effect, that all legislation (other than bills subject to budget “reconciliation” and confirmation of federal judges) cannot pass without the support of 60 senators; 41 senators, from the least populous states in the country, representing only 11 percent of all Americans (or 41 small state Republicans, representing 20 percent of the U.S. population), can block all bills, except those subject to reconciliation.
Once celebrated as the world’s greatest deliberative body, the United States Senate has become dysfunctional. In the last ten years, there have been as many cloture motions as there were in the previous half century. Contrary to McConnell’s claim that the filibuster promotes bi-partisan cooperation, the productivity of the Senate has dropped precipitously. In its 1955-1956 session, the Senate passed 2,410 bills. In 2019-2020, the number was 278 (4 percent of the bills that were introduced).
The very long list of important bills never brought to a vote includes required background checks for individuals seeking to purchase a gun. Co-sponsored in 2013 by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) following the Newtown, Conn., school shooting, the legislation was supported by 90 percent of voters and 54 senators. It died of a Republican filibuster.
History is about to repeat itself as the Senate considers whether to consider universal background checks in the wake of the mass shootings in Atlanta, Ga., and Boulder, Colo. Immigration reform will almost certainly suffer the same fate.
Defenders of the status quo have identified no bills recently passed by the Senate in which the filibuster produced “broader support than what is required by a bare majority.” Nor have they credibly countered claims that the principal aim of filibusters is to kill bills.
The Brennan Center for Justice has it right: “If the Senate is to be responsive to the popular will, the filibuster must go.”
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”
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