Five myths about the filibuster

Five myths about the filibuster

Norman Ornstein — Read time: 6 minutes

Norman Ornstein, an emeritus scholar at the American Enterprise Institute, is a co-author of “One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet Deported.”

January 7, 2022 at 9:48 a.m. EST

Senate Majority Leader Chuck Schumer has thrown down the gauntlet, saying he will move to change Senate rules by Jan. 17 if Republicans continue to block the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Because of the filibuster, neither can be enacted without 60 votes in the Senate — and no Republican backs both bills, though all 50 Democrats do. Supporters of the status quo have their reasons, many of them caught up in myths about the history of the Constitution and the Senate’s role.

Senate bills have always needed a supermajority.

People often overestimate the depth of the filibuster’s roots. When the Senate voted in 2013 to invoke the “nuclear option” to approve presidential nominees, then-Sen. Lamar Alexander (R-Tenn.) wrote in The Washington Post that sidestepping the filibuster was “the most dangerous restructuring of Senate rules since Thomas Jefferson wrote them.” More recently, Sen. Joe Manchin (D-W.Va.) defended the filibuster in the Charleston Gazette-Mail by saying, “Our founders were wise to see the temptation of absolute power and built in specific checks and balances to force compromise that serves to preserve our fragile democracy.”

True — but the filibuster was not one of these checks and balances. The Senate did not have any provision for a supermajority on legislation for its first 17 years. Like the House, its rules allowed a “motion for the previous question,” where a majority could move directly to vote. That provision was taken out in 1806, when Vice President Aaron Burr cleaned up what he regarded as extraneous provisions in the Senate’s cluttered rule book. For decades after the change, the status quo largely prevailed — until the 1840s, when John C. Calhoun exploited the motion’s absence to stall anti-slavery action by talking at length on the floor, joined by allies. His adversaries had no ability to stop the talk. From the 20th century on, the rules changed multiple times, always to make it easier for the majority to overcome a filibuster and move to action.

The framers feared 'the tyranny of the majority.'

Filibuster proponents often argue that the Constitution’s framers intended to obstruct decisions by simple majorities. In defense of the filibuster, Lewis & Clark Law School professor James Huffman wrote in the Hill that James Madison “would likely think it a brilliant innovation for preventing majority tyranny.” Senate Republican leader Mitch McConnell (Ky.) wrote in the New York Times in 2019 that the filibuster is “central to the order the Constitution sets forth,” citing Madison’s view that the Senate ought to function as an “additional impediment” and a “complicated check” on the House.

But other than the explicit constitutional requirements for supermajorities, such as to approve treaties, the framers were foursquare for majority votes. Alexander Hamilton wrote in Federalist 22 that allowing minorities to overrule the majority would cause “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” Congressional Research Service scholar Walter J. Oleszek has noted: “Overall, the Framers generally favored decision-making by simple majority vote. This view is buttressed by the grant of a vote to the Vice President (Article I, section 3) in those cases where the Senators are ‘equally divided.’” This provision makes clear that the Constitution’s drafters expected that most decisions would be made by majority vote.

The filibuster fosters moderation and cooperation.

In The Post, Sen. Kyrsten Sinema (D-Ariz.) wrote last year, “The filibuster compels moderation.” She is not alone in arguing that the rule has a salutary effect on lawmakers’ bipartisan dealings: The Heritage Foundation’s Thomas Jipping, for example, claims that it “encourages consensus.”

That may have been true in the distant past, but it has not been the case for a long time. The Senate changed the filibuster rule in 1975, from two-thirds of those present and voting to three-fifths of the entire Senate. The “present and voting” standard, by requiring senators to show up, put the burden on the minority; the absolute standard shifted the burden entirely to the majority. On most issues, when it is clear that a cloture vote (that is, a vote to end debate) would fail, there is no debate, which would only take up precious floor time. The minority can kill bills with few or no visible traces, and has no incentive for moderation or compromise. A good example: The House passed two bills last year requiring universal background checks on guns. Neither was even brought up in the Senate because Republicans made it clear the measures would die on filibusters.

Keeping the filibuster now will preserve it in the future.

Some Democrats are reluctant to change the filibuster because they worry what Republicans would do under the new rules if they regained the majority. “We have more to lose than gain by ending the filibuster,” Sinema argued in her Post piece. Manchin, also writing in The Post, said: “If the filibuster is eliminated or budget reconciliation becomes the norm, a new and dangerous precedent will be set to pass sweeping, partisan legislation that changes the direction of our nation every time there is a change in political control. The consequences will be profound — our nation may never see stable governing again.”

The implication is that if Democrats grit their teeth and keep the filibuster as is, Republicans will exercise the same restraint when they recapture the majority. But recent history offers no evidence that the GOP would be constrained by tradition. During the Obama presidency, Sen. Pat Leahy (D-Vt.), then chairman of the Judiciary Committee, insisted on keeping in place the “blue slip” tradition, which lets senators decide the fate of lower-court judges nominated from their states. But early in the Trump presidency, when a Democrat used the tradition to block a nominee from his state, Sen. Charles Grassley (R-Iowa), the committee’s new chairman, abandoned it.

Then there is the Supreme Court. McConnell quickly changed the filibuster rule to enable majority action on Trump’s Supreme Court nominees. Then, after refusing to hold a hearing on Barack Obama’s nominee 11 months before the 2016 presidential election, saying tradition demanded that the victor of the election choose a new justice, he abandoned that norm and held a vote to confirm Amy Coney Barrett eight days before the 2020 election.

A rule change would make the Senate just like the House.

Some believe that without the filibuster, the Senate would lose its essential character. This is what Brown University professor Rich Arenberg argued in The Post in 2019, that “leaving most questions to a simple majority vote would render the Senate much like the House of Representatives.” Responding to Democrats’ proposed rule change at a news conference Monday, McConnell said: “Make no mistake about it, this is genuine radicalism. They want to turn the Senate into the House. They want to make it easy to fundamentally change the country.”

It is true that the Senate was designed to be very different from the House: It represents states, gives those states equal footing and allots senators six-year terms. The Senate does not, however, derive its character from supermajority requirements. After all, the filibuster did not even exist when the body was founded. Democrats have proposed, for example, requiring that senators actually speak on the floor, or flipping the standard such that the Senate would require 41 votes to continue debate rather than 60 to end it. These reforms to the filibuster would not weaken the Senate, but would restore it to its rightful place in our political system.