Introduction
The filibuster in the US Senate is a defining feature of America’s modern political system. It was also introduced accidentally.
In 1789, the Senate originally created rules on ending debate. Through a simple majority vote, the Senate could end discussion on its current topic. This rule, however, was only used once in the next seventeen years. As a simple matter of housekeeping, Vice-President Aaron Burr argued for the removal of this rule, as it appeared to be mostly redundant. In 1806, the Senate agreed, and, to streamline Senate procedures, removed the simple majority vote to end debate. This in turn meant that there was no mechanism to end the debate. The potential to filibuster was thus (unintentionally) borne.
The filibuster has changed substantially since its creation at the hands of Burr. In 1917, cloture was introduced, allowing senators to end debate with a two-thirds majority. In 1973 the number of voters required was lowed to sixty. The filibuster also no longer involves Senators talking for great lengths of time. Instead, it practically acts as a simple 60 vote requirement for any legislation passing through the senate.
Over the past few decades, the use of the filibuster has reached previously unseen levels. The filibuster has been used for practically every piece of applicable legislation which is not specifically labelled ‘bipartisan’. This has limited the ability of the governing party to pass the legislation which it intends, as the 60-vote threshold is incredibly difficult to meet.
It is not an exaggeration to suggest that the immediate abolition of the filibuster could change the course of American and world history. Without the filibuster, Democrats would far more easily be able to pass legislation on climate change, voting rights, gun safety, criminal justice reform and a range of other issues.
While the filibuster is in place, any such legislation to be passed has to be watered down to reach sixty votes or be passed through alternate legal mechanisms, most notably reconciliation and executive action. Considering the dubious applicability of both reconciliation and executive action to the aforementioned issues, neither is particularly appealing.
There are clear reasons to believe that it might be beneficial to abolish the US Senate filibuster. However, the mere notion of its abolition often brings vitriol and condemnation by its proponents. In this essay, consider the most important reasons why many believe that the should be filibuster maintained, and argue why, in my view, they are less important than the benefits of its abolition.
Argument 1: The Filibuster Ensures Compromise
When Walter Mondale and several other Senators proposed to reduce the threshold for cloture to 60 votes, down from two thirds, there were many calls to simply abolish the filibuster and make the threshold 50 votes. The proponents of our current cloture rules, however, believed that the 60-vote threshold would encourage compromise and bipartisanship within the Senate. This is because the majority party, needing more votes, would have an incentive to consider the minority party’s opinions to acquire the votes needed to pass this threshold.
However, under the political status quo of the Senate, compromise rarely happens. What Mondale failed to realise was that, while the majority party has strong incentives to seek the support of the minority party, the incentives for minority party members to give their support are quite limited.
This is for reasons which are generally quite straightforward. When successful legislation is passed, the majority party and the party of the President tend to receive most of the political credit. If President Biden were to achieve 60 votes for his infrastructure bill, for instance, the praise would mostly be laid upon him and the Democrats, not the Republicans. The credit given to supporters of any bill from a minority party is scarce.
Meanwhile, if the Senate is paralysed, with no major legislation passing and a general lack of compromise, the party with the majority in the Senate and the presidency tend to receive the majority of the blame, helping the minority party comparatively. This thus gives a strong incentive to prevent the passing of successful, bipartisan legislation.
There are thus extensive incentives for minority parties to prevent bipartisan compromise. The alleged bipartisanship which the filibuster aims to bring about generally fails to materialise and the Senate is often paralysed by the conflicting incentives The only bipartisanship which is actively helpful for minority parties is the façade of bipartisanship.
Argument 2: The Senate is Meant to Rein in American government
When the founding fathers designed the institutions of government which have defined the US for the past two and a half centuries, to some the Senate seemed redundant. Through the House of Representatives, the United States appeared to already have a representative body to act as an American parliament.
However, the founding fathers did not believe that the House of Representatives alone was sufficient to control American government. Among other reasons, the founding fathers created the Senate to act as an ‘anchor’ or ‘cooling saucer’ for the American governmental system. They worried that the House of Representatives and the Presidency if left alone, could brashly introduce new legislation without consideration of its long-term consequences or implications. The Senate had the purpose of tempering the capricious tendencies of the other institutions of the American government, deliberating over legislation more carefully and only passing it when it is deemed necessary and beneficial.
To many, the filibuster furthers this end. By practically forcing 60 votes for most legislation to pass the Senate, the filibuster makes the passing of legislation far more difficult. Advocates of the filibuster often argue this effect is beneficial. To them, the filibuster could be seen like a seawall preventing a surge of poorly thought out policies.
However, I believe that this argument in favour of the filibuster is flawed for two primary reasons:
Firstly, as I highlighted in the introduction of this essay, while the founding fathers intended the Senate to be more deliberative and mature than other branches of government, they did not intend to include the filibuster. The filibuster was created by accident. It is childish to suggest that the filibuster itself draws legitimacy from the founding fathers. Other aspects of the Senate likely embody the traits which they thought would anchor American government.
Secondly, while the founding fathers may have intended the Senate to be somewhat temperate, they most certainly would not have wanted it to be dysfunctional. The excessive 60 vote threshold combined with the heightened polarization of politics within the US and incentives to avoid compromise means that rather than simply slowing legislative progress, the filibuster almost entirely halts it.
Right now, the Senate is impotent to such an extent that a party with a democratic mandate within the House, Senate and Presidency is rarely if ever able to pass any of their legislative agenda through regular means (As can be highlighted by the difficulties which Biden is currently facing). The degree of torpor created by the filibuster keeps legislation out of existence rather than anchored in reality.
Argument 3: Abolishing the Filibuster will Damage American Democratic Norms and Precedent
The filibuster at the moment is a defining feature of the US Senate. Both proponents and opponents of the filibuster would acknowledge this fact.
Senators often like to highlight how the Senate is distinct from the House of Representatives. Biden himself, when he was a Senator, is reported to have chastised younger Senators for not respecting the institution of the Senate.
To remove a feature of the Senate that so dramatically defines it would constitute a substantial overhaul of American government. This change would be even more dramatic if taken via ‘the nuclear option’, circumventing regular established procedure. To some, this upset of governmental norms and procedure is intrinsically bad, especially while American politics stands on a knife's edge as it does now.
An overhaul of the Senate could be seen as a power grab by voters, further undermine faith in existing institutions, and perhaps spur Republicans to reciprocate, emboldening their undermining of government institutions.
I do admit that there is some credence to the idea that abolition of the filibuster could be seen as a power grab by Republican voters. If Republicans had abolished it under Trump, I believe Democrats (and I myself) would have thought much the same of Republican action. This perception could, in turn, be damaging for the Democrats to some extent in the short term, although the extent to which I think this would linger as a political flashpoint is quite limited.
However, this short-term political loss would be outweighed in impact by a few key benefits presented to Democrats by the abolition of the filibuster. The abolition of the filibuster would allow the Democrats to pass into law the ‘For the People Act’ (H.R.1.), which has no real chance of passing under the status quo. This would make illegal the numerous ways in which Republican lawmakers, and to a lesser extent Democratic lawmakers, have used the apparatus of government to gerrymander and suppress voters who are politically unsupportive. The passing of such a bill, in addition to making the US a more complete democracy, would aid Democratic electoral prospects in the long term in a far more substantial manner than any short-term political loss.
Indeed, the abolition of the filibuster would end the paralysis characterising the current Senate. Voters are more likely to have faith in a government that is effective, and which they believe is passing legislation to address the issues they feel personally. Faith is most certainly undermined by a government characterised by gridlock and shutdowns. It thus seems likely that the abolition of the filibuster would increase faith in government overall, not decrease it.
Finally, while the abolition of the filibuster could lead to Republican reciprocation, I doubt that this would be substantially worse than the status quo. In the later years of the Obama Presidency, and especially recently within the Trump Presidency, Republicans have already trivialised the rules and conduct which typically embodied the Senate and US government.
When several Republican Senators, and a majority of the Republican House, refused to verify the results of a free and fair democratic election that had been embraced by all states, it is clear that there is already a failure to duly respect established precedent and democratic norms. It is unlikely that an (admittedly quite substantial) procedural change to Senate rules which were never a part of the vision of the founding fathers would undermine faith beyond the nadir we have reached in the past year or so.
Argument 4: Republicans could use an Abolished Filibuster as Well
It is easy to resort to short-term thinking when considering the filibuster. In the introduction of this essay, I looked at the benefits of its abolition mainly within the immediate context of the Biden administration. (how it could be used to lead to progress on climate change, voting rights, criminal justice reform etc…).
However, the abolition of the filibuster would have dramatic effects far into the future. Whenever Republicans control the ‘trifecta’ of the House of Representatives, the Senate and the Presidency, which due to the political pendulum of American politics seems inevitable at some point in the future, they would have near-untrammelled power to pass whatever they want.
This could practically mean increased voter restrictions, the dismantling of America’s limited welfare state, a return to the dark ages in climate policy and regressive policy on issues ranging from abortion to LGBT rights. It is clear therefore that a vast amount is at stake, and unfettered Republican power could be disastrous for the US.
This issue of extensive Republican control is exacerbated by the general Republican bent of the Senate. In 2019, a Data for Progress analysis by Colin McAuliffe found that the Senate tilts towards the Republicans by three percentage points. This general Republican tilt would likely mean that Republicans could take advantage of the expedited passage of legislation via the abolition of the filibuster more effectively than Democrats could.
The issue of future Republican control of the trifecta is the most valid and worrying concern presented by the abolition of the filibuster. However, I believe there are a few reasons why the filibuster should be abolished regardless of this.
Firstly, it seems likely that a Republican government controlling ‘the trifecta’ would abolish the filibuster regardless of current Democratic action. While Former Majority Leader Mitch McConnel’s Senate refused to do so between 2016 and 2018, attitudes towards its abolition have softened to such an extent that it would now no longer be an extremely radical move to abolish it.
According to polling from Data for Progress, while a majority of voters do not know what the filibuster is, a slim majority of voters has favourable attitudes towards changing Senate procedure to make it easier to pass bills. Additionally, a substantial majority has favourable attitudes towards changing Senate procedure to ease gridlock in Washington. The current political incentives not to abolish the filibuster are thus quite limited. Considering the short-term benefits for whichever party abolishes the filibuster (most notably the ability to change voting laws), I believe there is a high probability a future Republican government controlling the trifecta would abolish it anyways.
If we accept that Republicans are likely to abolish the filibuster regardless, the harm of abolishing it now becomes substantially less impactful. Moreover, the short-term benefits of abolishing the filibuster are extremely pressing.
Beyond Covid-19, about which substantial legislation has already been passed through budgetary reconciliation, the two most important issues facing the US government are climate change and voting rights. If the US fails to take immediate action on climate change, large sections of the world could face a catastrophe on an existential scale. It seems unlikely Biden will be able to achieve anything close to his goal to cut emissions by 50% by 2030 while the filibuster remains in place.
Additionally, if Democrats fail to pass H.R.1, Republican gerrymandering and voting rights restrictions could set in stone an undemocratic Republican power grab we have seen across the country in the past few months. This failure would in turn lead to a further Republican tilt to the senate (and electoral system generally) and thus a more conservative climate, social and economic policy for a generation.
Additionally, the filibuster would likely on the whole lead to more successful policies lasting in government. If the legislation passed by an unfilibustered Senate were successful, voters would generally support it. This would make its abolition more difficult, as we saw with the inability of Republicans to effectively eliminate the Affordable Care Act. Meanwhile, if legislation were unsuccessful, it would likely be eliminated over time by the opposing party. This would have a long-term effect of successful policies typically surviving independently of partisan considerations.
Conclusion
The abolition of the filibuster is perhaps the biggest open policy question at the moment. Democrats would need their entire Senate caucus of 50 Senators to abolish it. While several senators such as Joe Manchin and Kyrsten Sinema have expressed unfavourable attitudes towards its abolition, there are some signs that they might be willing to consider it.
For the reasons that I outlined above, I believe that it is of the utmost importance that the filibuster is abolished. As long as the filibuster remains, the passage of substantial climate change and voting rights legislation and the plethora of other Democratic ambitions will remain unfulfilled dreams