Before reading: In your notes, draw and label the scale below. Use the scale to map your feelings on the use of the congressional filibuster. If you think it is rarely justified, place yourself on the left side of the scale. If you think it’s almost always justified, place yourself on the right side. Explain why you placed yourself in that spot. Under what circumstances do you think the use of a filibuster is justified?
A wide range of policy debates have already dominated the front lines of the 2020 Democratic primary. These have included everything from Medicare for all to raising the national minimum wage and even increasing teachers’ salaries. However, another proposal gaining attention in recent months is the abolishment of the filibuster to block legislation in the Senate.
Filibustering is a tactic frequently used by senators in which they can prolong debate over a bill almost indefinitely simply by holding the debate floor for as long as possible, thus effectively blocking the passage of a bill. A filibuster may be sustained even if the Senator is discussing a topic other than the legislation at hand. For instance, in 2013 Senator Ted Cruz held a filibuster against a version of the Affordable Care Act for 21 hours and 19 minutes by doing things like reading bedtime stories to his two young daughters and announcing messages that had been sent to his Twitter account. The only formal way to stop a filibuster is for the Senate to vote in favor of “cloture,” which requires a three-fifths supermajority vote (or 60 votes out of 100). A filibuster may also be stopped by more informal means if a Senator must stop debating to use the bathroom or to sit down. As a function of the Senate, the filibuster is very well-established, making it a tradition that is rarely questioned. However, new Democratic candidates are beginning to consider whether or not the filibuster truly helps Senators best represent their constituents’ interests. Perhaps this is more easily answered when viewed from a historical context.
The first effective filibuster was “discovered” in 1841 by Alabama Senator William R. King when he threatened an indefinite debate against Kentucky Senator Henry Clay over the creation of a Second Bank of the United States. Other senators realized there was no rule establishing a time limit for debate and sided with Senator King. Although it had been discovered, this did not make filibustering a common practice in the Senate. The cloture rule was not established until 1917 when a group of just 11 senators managed to kill a bill that would have allowed President Woodrow Wilson to arm merchant vessels in the face of unrestricted German aggression at the dawn of U.S. involvement in World War I. Even so, filibustering still did not establish itself until 1970 when the “two-track system” was implemented in the Senate. The two-track system allows for two or more pieces of legislation to be on the Senate floor simultaneously, with debate divided up throughout the day. This made filibustering much easier for senators to maintain, as they could filibuster one bill without halting Senate activity altogether. From this point forward, filibustering became increasingly more common in the U.S. Senate. However, from its history, it is clear that the filibuster is not a long-time tradition of the Senate, but rather a loophole in Senate rules that gained popularity as a strategy for obstruction of bills. Despite this past, many believe it now to be an indispensable function of Senate rules.
Many senators would argue that filibustering is necessary to adequately represent their states’ interests. But it is perhaps no coincidence that many of the Democratic presidential candidates who are strongly opposed to, or conflicted about, outlawing the filibuster are also coming off long tenures in the Senate—such as Bernie Sanders, Cory Booker, and Kirsten Gillibrand. While the filibuster has undoubtedly worked against these senators in the past, it is now a vital tool to them as Democrats are currently the minority in the Senate. This is because the filibuster’s primary purpose is to avoid the tyranny of the majority and preserve minority rights.
Take the gun control debate as an example. Senate Democrats have long pursued reforms on gun laws but have had little to no success due to Republicans holding the Senate majority and not allowing gun reform legislation to even reach the floor for a vote. Therefore, Democratic Senator Chris Murphy of Connecticut filibustered for 14 hours and 50 minutes in the wake of a mass shooting at the Pulse nightclub in Orlando, Florida. The filibuster swayed Senate Majority Leader Mitch McConnell to hold two votes on gun reform: one proposal to expand background checks for potential gun owners, and another proposal to block suspected terrorists from purchasing guns. In this case, the Senate minority was able to come together and prevent cloture on an issue that they could otherwise not have pursued due to Senate rules. It is instances like these that lead many to call the filibuster the “Soul of the Senate” and praise the filibuster’s ability to encourage more in-depth debate on highly-contested issues.
Others, however, take issue with the filibuster’s implications and the way it is used. While the filibuster can balance the power of the Senate majority, this function can also be limited. The Senate majority leader must approve a bill before it can be brought to the floor, meaning that senators in the minority must beg the Senate majority leader to introduce a piece of legislation before they can even initiate a filibuster. In a highly polarized Senate, where current Majority Leader McConnell controls the floor ruthlessly, even getting a filibuster started is extremely difficult.
Despite this, there are still some who argue that the ability to filibuster gives the Senate minority too much power. The primary reasoning behind this argument is that cloture and its 60-vote requirement are difficult to acquire, especially in times of hyperpartisanship like that which currently exists in the Senate. The threat of filibuster essentially sets a supermajority requirement on all major pieces of legislation, thus hindering Congress’s productivity. The Senate minority’s ability to filibuster also gives unpopular policy proposals more time over Senate proceedings than they should have. A prime example of this was in 1964 when a small coalition of Southern Democrats filibustered the Civil Rights Act for 75 hours.
Beyond giving the Senate minority too little or too much power, it is also alleged that the filibuster is applied unevenly between political parties. While filibustering does alternately inconvenience one side or the other depending on which party holds the Senate, fundamental parts of Democrats’ and Republicans’ platforms allow the filibuster to disadvantage Democrats more in the long run. The modern Democratic party tends to push policy that introduces new or enhances existing government programs, while the Republican party leans on a platform of blocking these programs and cutting taxes. Republican policies of blocking social welfare and cutting taxes are more compatible with the budget reconciliation process than are Democratic policies. Because filibustering is not allowed in the budget reconciliation process under Senate rules, Republicans can easily push their agenda through, while Democrats are left to struggle for a 60-vote supermajority to advance most of their legislation.
Whether it should be retained or scrapped, what is most important is that the filibuster is under public scrutiny by high-profile politicians. As injustices in America’s legislative mechanisms become more apparent, public criticism of these mechanisms has also become more common. Along with debating the pros and cons of the filibuster and its implications for democracy, presidential candidates for 2020 are also entertaining drastic structural reforms such as doing away with the Electoral College, increasing the size of the Supreme Court, and offering statehood to Washington, D.C. and Puerto Rico. Whether people believe these reforms are operational or not, the public discussion around taking fundamental action to make the U.S. legislative process more democratic and representative is one that is well worth the nation’s effort.
Respond to the following questions in your notes and through classroom discussion.
- How would you describe the Legislative Branch’s role and aims? Does the filibuster help this work or hurt it?
- Why prefer majority rule to dictatorship or oligarchy? What moral reasons can we offer?
- What reasons do we have for preferring a supermajority in certain situations? Why prefer a simple majority? When is each more appropriate?