Senator Ben Sasse recently published a cogent defense of the filibuster in the pages of the Wall Street Journal. As someone who wrote of the filibuster’s positive contributions to our form of republican government here at Public Discourse six years ago, I find myself drawn into Senator Sasse’s argument by a natural sympathy for it. However, I believe he overstates the case for the status quo in the Senate’s rules of debate, and should consider some reforms to the filibuster that would restore the chamber’s reputation as a great deliberative body.
Fresh from a Republican retreat in which members of both houses of Congress met to plan strategy, Senator Sasse reports that House members expressed impatience with the Senate and that “many wanted” to get rid of the filibuster altogether. He admits the truth of their central complaint: “It takes 60 rather than 51 votes to get anything important done in the 100-person Senate.” But Sasse defends this three-fifths supermajority for Senate action on both partisan and principled grounds.
The partisan defense is grounded in Sasse’s fear that without the filibuster, “every time Democrats have the presidency and even a bare majority in both houses of Congress, they will . . . grow government, and there will be nothing conservatives can do about it.” With the presidency, 218 House members, and 51 senators, the Democrats would steamroll the Republican minority, heedless of any moderating influence that might be brought to bear by the necessity of compromising with alternative viewpoints.
Of course, the shoe could be on the other foot. Conservatives in the Republican Party, with the presidency, 218 House members, and 51 senators, could achieve significant public policy reforms: shrinking government, loosening the grip of the administrative state on American life, cutting taxes and spending, strengthening federalism rather than undermining it, and vindicating individual liberty and local self-government alike. Senator Sasse’s partisan apprehensions may obscure the sight of such positive possibilities. A good case can be made that past triumphs of the progressive left are today locked in place by the difficulty of getting any reform or repeal of them through the supermajority barrier set in place by current Senate practice.
Then there is the senator’s principled defense of the filibuster, which is stronger and more interesting.
The filibuster is an outgrowth of the Founders’ vision of two distinct, complementary legislative bodies. The House is built for offense. It closely reflects public opinion with a two-year term. The Senate is built for defense. It exists to cool the popular passions of the House, and to serve as a brake on a too-powerful executive.
The Senate is not superior to the House, but it is different. Without the filibuster, the gap between House and Senate diminishes and with it our constitutional safeguards.
Senator Sasse is right to describe the filibuster carefully as “an outgrowth of the Founders’ vision” of the bicameral Congress. For as he knows, the practice of extended debate, limited only by a supermajority shutting it down to call a vote, was not contemplated by the Framers at all. They did indeed think of the Senate as the place to “cool the popular passions” that are more readily represented in the House. But they thought of this end as achieved by features directly created by the Constitution itself: the slightly higher age qualifications for senators than for House members; the originally indirect election by state legislatures (changed by the Seventeenth Amendment a century ago); the six-year staggered terms that gave both individual senators and the body as a whole more breathing space away from electoral pressures; the equal representation of states that honored our federalism and sheltered the interests of smaller states; the smaller number of senators, which would facilitate deliberation and engender a broader view of the national interest; and the burden of responsibilities unique to the Senate, such as treaty ratification and the power to confirm or defeat presidential appointments to the executive and judicial branches.
The constitutional feature that should concern us here is each house’s authority to write its own rules for its internal business. With its shorter terms and more numerous members, the House of Representatives could easily have been the scene of chaos and indecision. From its earliest days, therefore, the House developed rules that tightly control the chamber’s business so that it is (relatively speaking) orderly and efficient. Now having grown from 65 to 435 members, the House is the sort of place where the idea of an individual member’s right to hold the floor indefinitely is unthinkable.
The Senate, beginning with 26 members, has grown to just 100, and by nature it could have become the kind of cozy cockpit where everyone goes along to get along. Hence its rules have been crafted over time to give maximum space to a prickly individualism, with “holds” in which one senator can delay business, practices like “senatorial courtesy” in which senators are consulted before judicial appointments are made in their states, and above all the tradition of unlimited debate—the filibuster.
In the nineteenth century, when it first emerged more or less accidentally, this right of a senator to hold forth with no obligation to yield the floor was controlled only by the possibility of his exhaustion. Especially when used in combination with other senators, it became a potent tool for the delay and often the defeat of legislation opposed by a minority. Only one way emerged of limiting debate before it began on a bill or motion: the unanimous consent agreement (UCA), typically negotiated by majority and minority leaders. If the Senate leadership brought a matter to the floor ungoverned by a UCA, all bets were off.
No remedy for a filibuster other than exhaustion existed before 1917, when the Senate invented “cloture.” Embodied in Rule XXII of its standing rules of procedure, cloture permitted two-thirds of the senators present to shut down a filibuster, though considerable opportunity remained for substantial debate after a cloture vote. Only in 1949 did cloture become available to shut down a filibuster of a presidential nomination; previously it could be invoked only for legislation on the floor. In 1975, Rule XXII was changed to a three-fifths vote of all serving senators—or 60, when there are no vacancies in the modern Senate.
But the 1970s brought another change in Senate practice, the introduction of multi-tracking to permit Senate leadership to sidetrack any matter subjected to filibuster while going ahead with other floor business. Previously, any matter scheduled for floor debate was the Senate’s exclusive business while it pended, so a filibuster caused the Senate’s business to come entirely to a halt until either cloture was invoked, the filibuster failed and a vote was held, or the matter was set aside for keeps. Nowadays with multi-tracking, filibusters don’t carpet-bomb the daily calendar of the Senate; they merely precision-bomb the individual legislative matters they target for defeat, as the leadership sets them to one side and moves on to other (typically more trivial or uncontroversial) things.
What should not be surprising in retrospect is that the number of filibusters (counted on the record but not actually performed) has exploded as a consequence. When filibusters were impossible to stop in the nineteenth century, they were actually quite rare events. In the twentieth century, the invention of cloture increased the incidence of filibusters, as they became a way of probing the majority’s strength by daring it to try for cloture. And multi-tracking caused the greatest increase of all, as senators came to learn that they would never actually have to perform a filibuster by holding the Senate floor and talking. Merely saying that one intended a filibuster was taken as the thing itself. And leaders and sponsors moving legislation will now act preemptively by filing for cloture when matters are placed on the calendar without a UCA attached to them—acting on the now-governing presumption that the business will not move without 60 votes freeing the way.
Senator Sasse calls for his readers to “embrace debate,” but the effect of the modern filibuster in practice is that it has largely stifled debate. As we have already seen him say, “It takes 60 rather than 51 votes to get anything important done in the 100-person Senate.” The best case for the filibuster was the contribution it made to deliberation. But modern filibustering is not a means of engendering discussion, or even of delaying legislation in order to persuade the majority to rethink its priorities, either by giving up on legislation or modifying it in search of compromise. It is instead solely about obstruction. And the complete lack of cost in effort, publicity, or risk of opprobrium for those engaging in today’s non-deliberative filibuster means that they can do more than frustrate majority rule occasionally or temporarily. They can block majority rule, as and when they please, permanently, on a great many matters, especially the most important ones.
So exasperating has this modern practice become that in 2005, Republican senators contemplated the “nuclear option” of negating the filibuster in the case of judicial appointments. And in November 2013 the Democrats pulled that nuclear trigger, “interpreting” Rule XXII so that now cloture can be invoked by a simple majority in the case of any executive or judicial nomination other than for a Supreme Court justice. In the case of these appointments, then, we have gone from filibusters with no cloture available (pre-1949), to actual “talking” filibusters that can be shut down by cloture but must be performed on the floor (1949 to the mid-1970s), to “paper” filibusters that needn’t be performed, multiplied in number, and were increasingly difficult to control by cloture (mid-1970s to 2013), to effectively no filibuster at all on such appointments (2013 to the present), a dead loss for moderating majority rule.
This is not a story of gains in deliberative democracy, especially since we so seldom see actual debate on the matters being filibustered. And it is little wonder that a prevailing system of effective minority veto on legislation has caused calls for the filibuster’s elimination across the board, just as it caused its effectual strangulation where presidential nominations are concerned. The complaint of filibuster critics is hard to fault, for in a Senate retaining plenty of other features that are conducive to “cooling the passions” of democracy, the modern practice has a distinctly unrepublican character.
Senator Sasse is right to reject the elimination of the filibuster. At its best, this historic practice enhances the Senate’s deliberative function. But it hasn’t been at its best for about four decades. The good news is that filibuster reform is within the grasp of the Senate majority leadership at any time, by selective elimination of multi-tracking precisely on the most important matters. Merely announce that on Bill X or Nomination Y, the matter coming to the floor is the Senate’s only business until its resolution, and that senators who have threatened a filibuster will have to make good on the threat. Then the floor business of the moment will have to end one of three ways: by the debate’s natural ending with a vote, as filibusters peter out or senators’ bluffs are called; by the assembling of 60 votes for cloture and the orderly winding down of debate followed by a vote; or by the withdrawal of the matter at hand as its movers give up on it in the face of a talking filibuster.
With this simple change—a restoration of a historic practice that generated debate rather than obliterating it—the Senate can restore its republican bona fides, give minority points of view an audible voice, greatly reduce the number of filibusters, make incremental gains in the passage of bills important to the majority, and improve the quality of debate. The “precedent” that mortally wounded the filibuster on nominations in 2013 could also safely be reversed, as it should be.
Senators in both the majority and minority would have to work harder in the future I have sketched here—both those filibustering and those seeking to survive or shut down the filibuster. But it would be a price worth paying to refashion the Senate as a legislative body that can sometimes make reforms, and not simply bury them.
Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.