The Filibuster Isn't Sacred
Mr. Smith Goes to Washington enshrined the filibuster as a test of wills, allowing a noble politician to give an impassioned speech for hours, even days if necessary, without rest to protect our democracy from the inherent corruption festering within the halls of DC.
The filibuster is revered and seen as a symbol of democracy. Hollywood has a knack for crafting heroes.
In the real world, the filibuster was used to block civil rights legislation, wasn’t intended or desired by the authors of the Constitution, and doesn’t require someone to give a speech or even stay on the Senate floor.
The filibuster is not part of the Constitution and may even be unconstitutional, but we will get back to that in a bit. Instead, the filibuster came from an oversight in congressional rules—a technicality quickly used to “talk away the time, so that we could not get the bill passed,” as Senator William Maclay wrote in 1789. The term filibuster didn’t even appear until the 1850s, and it quickly became apparent that this procedural loophole hindered governing.
Instead of removing the filibuster altogether, the rules were adjusted over time, as there were always enough Senators who liked it, especially those currently in the minority party. In 1917, the Senate added a rule invoking cloture. This allowed two-thirds of the Senators to vote to end a filibuster.
Due to the two-party system, invoking cloture was far too difficult. Only five filibusters were defeated in forty years. The filibuster was particularly popular among southern senators, who used it to block civil rights legislation for decades. The longest individual filibuster record is Strom Thurmond, who spoke for 24 hours and 18 minutes to block the Civil Rights Act of 1957, although the bill ultimately passed.
After a continuous 75-hour filibuster by Southern Democrats against the Civil Rights Act of 1964 and 60 days of consideration on the bill before cloture was voted for, senators reached their limit of frustration with the filibuster. They lowered the majority needed to invoke cloture to three-fifths or 60 Senators.
You have probably heard about a bill not being brought to the floor because it didn’t have 60 votes. Instead of the majority party being able to pass legislation with a simple majority of 51 votes (or a Vice President tie-breaker with 50 votes), the minority party will always use a filibuster, so 60 votes are needed.
If you think it is surprising that so many senators would be willing and prepared to give an eight-, ten-, or twenty-four-hour speech, they’re not. Today, there is a silent filibuster, which means senators don’t have to give a speech and don’t even have to stay on the Senate floor. This is why almost every bill faces a filibuster.
Almost every bill, but not every matter before the Senate. That’s because In 2013, Senate Democrats voted to eliminate the filibuster for judicial nominees, excluding Supreme Court Justices. In 2017, Senate Republicans led by Mitch McConnell removed the exception for Justices to push Neil Gorsuch through Democratic resistance. This inevitability can be traced back to Senate Republicans in 2005, who proposed getting rid of judicial filibusters because the process was unconstitutional, and a 2003 Congressional Research Service paper that wrote:
The Appointments Clause of the Constitution, which provides that the President is to “nominate, and by and with the Advice and Consent of the Senate, ... appoint” judges, does not impose a super-majority requirement for Senate confirmation.
This is important because the Constitution explicitly states when supermajorities are needed.
If a President vetoes a bill, it requires a two-thirds majority in both the House and Senate to overturn it.
A two-thirds Senate majority must ratify a treaty.
It requires a two-thirds Senate vote to convict an impeachment.
A two-thirds vote in both the House and the Senate can propose an amendment. At this point, it requires three-quarters of the states to approve.
There is an understanding that a simple majority is used the rest of the time. Overall, 161 exceptions exist for the filibuster, including the annual budget reconciliation. Yet we continue to pretend that the filibuster is vital to or even in favor of democracy.
The truth is that the filibuster was the opposite of what the authors of the Constitution intended. Before the Constitution, the United States had a failed founding document called the Articles of Confederation and Perpetual Union. One of the fundamental flaws of the document was a requirement of a state supermajority of 9 out of 13 to pass legislation. Nothing was getting done.
Alexander Hamilton had this to say about supermajorities:
To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings.
And James Madison said:
It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.
This is exactly how the filibuster has been used, particularly during the civil rights era. The majority of the country wanted progress, but a small minority could block it due to a loophole that was never intended and never fixed.
Article I of the Constitution states that:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business
Just a simple majority, not a super majority whose uses are clearly defined throughout the document.
One final example of how anti-democratic the filibuster is is the Electoral College. The Electoral College is a broken byproduct of slavery and the three-fifths-person rule. It was not born out of a desire to ensure smaller states had a larger impact on our government, as some suggest; that was the explicit purpose of the Senate.
In 1970, an amendment to eliminate the Electoral College reached the Senate after polling exceptionally well and passing the House of Representatives. Part of the effort to defeat this amendment was a filibuster led by none other than Strom Thurmond, a leading opponent of civil rights legislation. In the end, the amendment was narrowly defeated. As a result, we still have the Electoral College, which gives small states oversized power, thanks in part to a filibuster that gives a minority party oversized control over legislation.
Ending the filibuster should be discussed before the election because it is about fixing what is broken in government, not seeing which party it benefits in the short term.
https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm
https://www.brennancenter.org/our-work/research-reports/case-against-filibuster
https://www.everycrsreport.com/reports/RL32102.html
https://www.brennancenter.org/our-work/research-reports/filibuster-explained