Even before Scott Brown’s election in Massachusetts on a promise to be the forty-first senator—and thus the decisive vote—against President Obama’s health-care reform plan, the frustrations of the Democrats and their allies in the media had spilled over into new criticism of an old phenomenon in American government: the filibuster in the U.S. Senate. In late December, Ezra Klein wrote in the Washington Post that the frequent use of the filibuster on major legislation in the Senate prevents either party from being able to “successfully govern the country.” Instead it produces “gridlock and inaction,” since it takes a 60-vote majority in the 100-member Senate to pass major legislation.
More recently, Thomas Geoghegan argued in the New York Times that the filibuster is unconstitutional. First, he says the framers of the Constitution were generally against supermajority requirements, and included just a few such requirements for special purposes in the Constitution; therefore the Senate filibuster, not specially authorized in the Constitution, is contrary to their intentions. Second, Geoghegan notes the vice president’s power to cast a tie-breaking vote in the Senate, a power that is vitiated when the 60-vote requirement prevents a tie vote from ever happening. And third, the Constitution requires only a bare majority as a quorum to do business, yet the filibuster requires the supporters of a major bill to muster 60 votes. Thus the filibuster violates the Constitution.
These are less than convincing arguments. Geoghegan downplays the provision in Article I, Section 5 of the Constitution that authorizes each house of Congress to “determine the Rules of its Proceedings.” The Senate has chosen a set of rules that prize the power of senators as individuals to shape and to slow down debate in the chamber, while the House has chosen rules that streamline debate and advantage the majority party. How can the Senate’s conformity with the letter of the Constitution be declared “unconstitutional”?
Klein keeps the focus on the alleged unfairness of minority power, and the impact on accountable and effective governing. But Geoghegan’s argument has resonated more strongly with critics of Senate obstructionism, because the American people will always respond to an appeal to the Constitution—even a strained one unsupported by the text. What Klein and Geoghegan have in common is a sense of outrage about the Republican Senate minority’s ability to traduce (in their view) the most fundamental principle of democracy, majority rule itself.
But is the filibuster anti-democratic? Or is it, in purpose and effect, an aid to legislative deliberation, and in that sense a valuable contribution to democracy? A good case can be made for the filibuster, when it is used prudently on the most important matters.
Before judging the value of the modern filibuster, consider its history and its present shape. In contrast to the House of Representatives, where the duration and openness of floor debate on each bill are tightly controlled by the Rules Committee and the majority leadership, the Senate has always prized the freedom of action of the individual senators, to speak at length during debate and to turn the deliberations on a bill in new directions by way of amendments. The only mechanism routinely used to control floor debate is the “unanimous consent agreement” (UCA), which limits the time each senator may speak and forecloses certain kinds of amendments. But as its name indicates, each UCA must be accepted by every senator, any one of whom may say “no” and keep his options open. Where there is no UCA, a filibuster remains a live possibility, and a single senator, having gained the floor (yes, think James Stewart in Mr. Smith Goes to Washington), can talk until either he or his colleagues give ground on the disputed legislation.
By the late nineteenth century, the use and abuse of the filibuster had become a famous and often controversial feature of Senate practice. In 1917, the Senate adopted Rule XXII, instituting the system of “cloture” to end debate. Now there were three ways that Senate debate could be brought to a conclusion: the UCA, cloture, or the exhaustion of any senators pursuing a filibuster. Initially cloture required two-thirds of those senators present and voting. In a 100-member Senate with 51 senators making a quorum, this could require as few as 34 senators, but when major legislation was on the floor, one could expect 90 or more senators to be present, requiring 60 or more to vote for cloture.
In the 1970s two changes took place in the cloture system. First, Rule XXII was amended to require three-fifths of all serving senators, not merely all those present, thus setting the bar at 60 votes for cloture in every case (when all Senate seats are filled). This is a target easier or harder to hit than the old one, depending on the circumstances—but probably easier when a truly significant bill is on the floor. Second, under Democratic majority leader Mike Mansfield, a “multi-track” system for moving legislation was devised, so that if a bill was threatened with a filibuster it could be sidetracked, while other legislation proceeded to floor consideration. Previously, with legislation on the Senate calendar, a filibuster stalled current business, producing a bottleneck until the filibuster was resolved.
Mansfield and his colleagues probably thought their multi-track innovation would render the filibuster a relic of bygone days, since it would no longer prevent the Senate from considering business on the floor. Instead it unleashed a torrent of filibusters—or more precisely a torrent of threats, consisting of announcements of an intent to filibuster. The threat did not need to be made good, because each such announcement came to be treated as triggering the necessity of a cloture vote. This new political environment is the reason why we never actually see a Mr. Smith-style filibuster, and yet we are told that on bill after bill, a filibuster must be brought to an end by a 60-member cloture vote. Multi-tracking is not the only cause of this ubiquity of the “ghost filibuster” (in Geoghegan’s phrase); sharper partisanship also makes a contribution, as the minority party feels less obligation to loosen its grip on obstructive power. But multi-tracking is probably the sine qua non of the modern 60-vote threshold for getting major things done in the Senate.
On many pieces of major legislation, the sponsors or majority leadership will now presume the threat of a (never-to-be-performed) filibuster, and file for cloture at practically the same moment a bill is cleared for movement on the floor. Then begins the “whipping” for votes not to reach the simple majority for passage, but to reach the super-majority of 60 votes just to control debate and make a vote on passage possible. This preemptive cloture-seeking can inflate the numbers of so-called filibusters, leading to somewhat different statistics on the frequency of the threat, depending on who is counting and what measure is used. Yet no one doubts there has been a sharp increase in recent decades in the employment of threatened filibusters and the need for cloture votes to bring the Senate to final votes on bills. The majority could conceivably reduce these numbers by forcing senators to make good on the threats by “doing a Mr. Smith.” But there is a powerful incentive to leave well enough alone, thanks to the fact that each party has had its turn in the minority on a regular basis.
But is all this minority power justified? Geoghegan complains that “[f]orty-one senators from our 21 smallest states—just over 10 percent of our population—can block bills” in the Senate. True enough: according to the latest Statistical Abstract of the United States, the smallest 21 states contain 11.2% of the nation’s people. But if cloture were blocked by 41 senators from the largest 21 states, they would represent 77.4% of the nation’s population. In terms of majority rule in the Senate, the cases are identical.
But the contending sides in a cloture battle are never so neatly distributed as in these hypotheticals. If we turn instead to our actual partisan division, we find that the 59 Democratic senators represent 36 states and 74.9% of the population, while the 41 Republicans represent 27 states and 48.7% of the population. (Numbers total more than 50 states and 100% because thirteen states have senators from both parties.) Before we conclude that their strength entitles the Democrats to unilateral control of the debate on every bill, note that the Republicans represent more than half the states and just a little less than half the population. These are sizable proportions to be considered, especially when taking up important legislation.
The goals of a minority can vary from blocking legislation altogether, to offering amendments constructively altering a bill’s shape, to merely having sufficient time on the floor to build a public case against the majority’s agenda. When the majority cannot command (or cajole its way to) 60 votes, it must give ground to the minority and attempt to find the distance each side must travel to reach an accommodation. This is the essence of deliberation, and it has the potential to be regularly conducive to better legislation, understood as laws acceptable to a near-consensus of the American people. The more significant the legislation, the more desirable is such a deliberative process.
What would be lost with the elimination of the filibuster? We saw a glimpse of the answer in the Christmas Eve vote on health-care reform in the Senate. Senator Harry Reid, the majority leader, engineered the all-Democrats cloture vote to produce a tightly controlled debate on final passage of a bill that few senators could possibly have read, to which no senator had a realistic opportunity to offer meaningful amendments, and which was conducted in an appallingly short time allowing practically no true debate among senators by which they could persuade one another or communicate with the American people. If Sen. Reid had set out to reproduce the worst features of debate in the House of Representatives on its worst days, he could not have done better. Each house of Congress has its peculiar virtues and vices as a legislative assembly. Deliberation and consensus-building are not the distinctive features of the House of Representatives. And there is no reason to desire two such chambers with the same deficiencies in this regard. Every proposal so far advanced to “reform” the filibuster promises exactly that outcome.
Republicanism does rest on majority rule. But decent republicanism also honors minority views, and gives a hearing to those voices that lack the power of command but possess the potential to persuade. When Scott Brown won in Massachusetts, he brought this decency back to the United States Senate. If the Senate is to aspire to its self-awarded title as “the world’s greatest deliberative body,” it will welcome his arrival and leave its fusty old filibuster tradition firmly in place.