A few months ago, I wrote an essay “January 6th and the Way Forward” in which I argued that there are three distinct and mutually reinforcing dilemmas driving the erosion of American democracy: political violence, hyperpartisan electoral politics, and rampant misinformation. I outlined necessary responses and promised more essays discussing policies and specific legislation that will help untangle the mess. This is the next entry in that series, in which I’ll discuss why the Senate filibuster makes everything else a moot point and how restoring its pre-1970 format is the best way to change it.
The filibuster is a procedural rule in the US Senate allowing any single Senator to block a bill’s progress. They only need to indicate their opposition to a bill under debate to force the bill's supporters to muster 60 votes to end that debate and bring the bill to a vote. There is a workaround to this rule, called reconciliation, that allows the Senate to end debate on some bills with a simple majority if the bill meets very specific criteria. Collectively called the “Byrd Rule,” these criteria essentially require every item in a bill to affect government spending or revenues directly, but not for longer than 10 years. Further rules limit the number of bills that can be passed under reconciliation to effectively one per year.
At first glance, the filibuster seems like a reasonable safeguard to ensure minority input on legislation. In truth, it is a disaster. Alexander Hamilton described such a system as “what at first sight may seem a remedy, is, in reality, a poison” because “the sense of the [minority] will overrule that of the [majority]” in Federalist 22. James Madison agreed in Federalist 58, saying that under such a supermajority system “it would be no longer the majority that would rule: the power would be transferred to the minority.” This is as plain to a modern observer as it was to the framers of the Constitution: Congress passes very little besides spending bills because the opposition party blocks everything else.
Reconciliation bills are a poor substitute. By their very nature, they are both limited and limiting. They restrict policy to only taxation and spending, preventing all other policy tools from even being considered. They force parties to cram an entire years’ worth of legislation into single, massive “omnibus” bills. These bills are written mostly behind closed doors by party leaders, with little input from rank-and-file members. And they frame policy debate as all-or-nothing hyperpartisan battles, with no room for debate or compromise even within parties let alone across party lines (Ezra Klein has an incisive exploration of the arguments in favor of the filibuster, why those arguments whither under scrutiny, and how the filibuster hamstrings US policymaking).
This means that legislation intended to combat domestic terrorism and rising political violence, to reform the electoral system, or to better regulate public speech cannot become law. None of these questions lends itself to a bipartisan supermajority, and neither party has serious prospects of winning 60+ Senate seats. The filibuster freezes Congress into gridlock when what we desperately need is thoughtful but decisive action to bring American democracy into the 21st century.
So what is to be done? There aren’t enough Senate votes to abolish the filibuster altogether. But there may be enough to return to a pre-1970 version. Before 1970, a filibuster required the opposition to hold the floor continuously, could be broken by a 2/3rds majority of Senators in the chamber, and blocked all other agenda items for the Senate until the bill was withdrawn or the filibuster was broken. Holding the floor for days or weeks is exhausting and highly public. The opposition had to be careful to ensure they could gather enough Senators to prevent an ambush by a sudden swarm of majority Senators. And the cost to policymaking was dire — literally, nothing else happened as long as the filibuster was upheld. *
A return to this format would preserve a means for the opposition to stave off objectionable legislation but would raise the cost of such action to the point that it couldn’t be the automatic response from the minority party. This in turn would enable Congress to use all the policy tools at its disposal. The cost is that sometimes, the “other party” would get to pass the laws they want. It should be obvious that such give-and-take is a good outcome for democratic government in the long run. But as long as we keep the filibuster as-is, the way is shut to enacting the kind of reform we need to preserve our system of government.
*Filibusters were used most notably to block civil rights legislation in the 50s and 60s. This is not glamorous history for a procedure that has aged badly.