In a nearly 10,000-word essay for Vox, Ezra Klein makes ten different arguments in service of his piece’s title: “The definitive case for ending the filibuster.” It’s a wide-ranging article, worthy of a read and some reflection.
But the fundamental question upon which his whole argument for killing the legislative filibuster rests appears early on: “Should we prefer a system in which parties can, occasionally, govern, or a system in which they can’t?” Klein asks.
To be sure, the purpose of government is to secure the people’s safety and happiness. We come together and consent to form a government to secure our natural rights, giving up some of our liberty only to the extent that doing so allows us to better secure all of our rights.
We should be very wary of a broken government, and, yes, we want our government to be able to govern when needed. Otherwise, why have one?
Even so, the filibuster, pace Klein, should not be scrapped completely. If it were, legislation could pass the Senate with the “Yea” votes of only 51 senators—50 if the vice president were called in to break a tie. Rather, it should be reformed so that the Senate can actually accomplish its admirable purpose as a check on the quick-moving, unfettered majoritarianism that’s proper to the House of Representatives.
As it stands, however, and as Klein ably catalogs, the filibuster greatly handicaps Congress’ ability to govern in a meaningful way. That’s a big problem because Congress is the preeminent branch of the federal government, and when it’s broken, the whole system falters and starts to break down. This is obviously what’s happened in the past five decades, to disastrous effect.
In the spirit of supporting functional constitutional governance, what follows are two reforms that would help to revive America by improving the filibuster.
Decrease the number of senators required to invoke cloture.
“The first known filibuster,” Klein writes, “occurred in 1841.” Back then “the filibuster permitted an impassioned minority to hold the floor, ensuring they could make their case, no matter the impatience of the majority.” In other words, it was “an unbreakable tool of delay.”
Today, conversely, “60 senators can force a vote using a process known as cloture.” But a three-fifths (60-vote) majority only became the magic number in 1975; back in 1917, when cloture was first introduced, a two-thirds (67-vote) majority was needed to break a filibuster.
So, why not lower it a bit more?
Given that the filibuster is not mandated by the Constitution (it’s a purely procedural creature of the Senate’s internal rules—Rule 22, to be precise), and the preeminent virtue in politics is prudence, it seems eminently reasonable to engage in some measured, clear-eyed experimentation aimed at improving the filibuster to meet the demands of the current moment.
Of course, a lower threshold to invoke cloture successfully will allow both parties to legislate more. But the alternative is unacceptable from a practical standpoint: that Congress sits on its hands and insists it simply cannot legislate on the most pressing issues facing the nation and, as a result, bleeds ever more authority by this paralysis to both the unaccountable administrative state and life-tenured, unelected judges.
That’s not a real choice. It’s time to engage in some prudent reform. Otherwise, we’re stuck doing the same thing over and over again, hoping for a different result.
The country cannot afford a Senate that wants to conform to the definition of insanity while faced with a rising, belligerent, COVID-producing-and-spreading China; a porous southern border that permits tens of thousands of illegal immigrants to unjustly rob Americans of good-paying jobs; and an education system that churns out racial-Marxist radicals who want to topple America by rewriting history to say that the founding was in 1619 rather than 1776—to name just a few of our most pressing concerns.
Force senators to speak continuously if they’re going to filibuster—just like the old days.
Filibustering happens much more now than it once did. “From 1917 to 1970, the Senate took 49 votes to break filibusters. Total. That is fewer than one each year,” writes Klein. “Since 2010, it has taken, on average, more than 80 votes each year to end filibusters” (emphasis added).
Filibustering happens so frequently now because it’s so easy, not to mention virtually costless, to filibuster today. Before (it’s unclear when or why this practice ended), a senator needed to hold the floor by speaking continuously, thereby grinding the Senate to a halt. While that was happening, the Senate couldn’t do anything else. The longest filibuster by a single senator was the infamous, 24-hour-18-minute filibuster by South Carolina’s then-Dixiecrat Senator J. Strom Thurmond against the 1957 Civil Rights Act. Today, when a filibuster is deployed, the Senate simply tables the issue and moves onto other business.
Accountability would be fostered if a senator had to be under a microscope and a spotlight by physically speaking from the floor to draw attention to some ghastly bill, thereby freezing in its tracks “the world’s greatest deliberative body.”
Imagine a senator filibustering some routine bill, something that happens with mind-numbing regularity now, under this revived practice. His doing so would immobilize the Senate completely, which is not what happens today. Presumably, his constituents, and the country at large, would not be pleased with regular occurrences of such vacuous, ineffectual, and pointless grandstanding. He’d better be doing it for a good reason, then.
Not only that, but if senators were required to speak continuously in the well of the Senate to stop a piece of legislation, it would focus the body and the body politic on what must be serious issues. This would encourage real debate and deliberation, rather than what we have now: “The minority leader’s office informs the majority leader’s office that they will not allow a given bill to move forward without 60 votes, and so if the majority does not have 60 votes, the bill does not move forward.” The order of the day is implied, anonymous threats of a filibuster, which send the issue to the very back of the queue where it is passed up by the fast-moving news cycle, and nobody knows who to hold accountable come election day.
The Democrats have raised the possibility of nuking the filibuster in a mad rush to extend and secure their power; killing it would make it possible for them to pack the Supreme Court and the Senate (by adding two more states, D.C. and Puerto Rico), which is why they’re entertaining it.
But that doesn’t mean their reckless plan can’t be tweaked or reimagined and even implemented for the common good of the nation.
Senator McConnell and Senate Republicans: for the good of the country, reform the filibuster.