Four Facts About the Filibuster
None of these is “new.” But nearly all of them are AWOL from political and press discussion of a major threat to American governance. A primer for this coming week.
This post is meant as a primer on a political discussion that is about to reclaim center-stage.
When a TV series has been running long enough, we get the introductory recaps that bring viewers up to date. “Previously, on Ozark … ” This post could be called, “Previously, on Filibuster…”
The point of recaps is that the information in them is not new. But it might have been forgotten, and you have to be aware of it to make sense of what’s about to occur. That is the spirit of what you see below.
For extra “Previously, on Filibuster” background, I direct you to a number of excellent pieces that have come out in the past few days. They include ones: by Bill Scher in The Washington Monthly; by Thomas Geoghegan in The New Republic (and in Geoghegan’s new book); and by Norm Ornstein in The Washington Post. Also, I’ll refer to a piece of fundamental importance, published last spring, in which more than 350 historians and political-science scholars signed onto an open letter warning about the filibuster’s crippling effect on American self-government. And Adam Jentleson’s 2021 book on the filibuster, Kill Switch, is canonical.
Here we go on primer points. Please just remember the main headings as you follow news about the Voting Rights bill this coming week.
1. The filibuster is a perversion of the Constitution, not part of its original design.
Joe Manchin opined recently that the filibuster was “what we’ve [the Senate] always had for 232 years.”
Of course that is false. (Chapter-and-verse below.)
It’s just as misleading as the now-routine journalistic shorthand about “the 60-vote threshold” that is supposedly “necessary” for measures to pass the 100-member Senate. (As opposed to a 51-vote simple majority, or just 50, with the Vice President casting the tie-breaking vote.) Or references to the supposedly hallowed Senate “tradition” of empowering minority-bloc objections to routine business.
These are all false, and need to be called out as such every single time. The details:
The Constitution includes no mention of the filibuster. None. It provides for simple-majority votes in the Senate, with a very few exceptions—notably impeachment, treaties, and Constitutional amendments.
The provision for tie-breaking votes by the Vice President is itself testimony to the “originalist” intent of simple majority-rule in the Senate. Article 1, Section 3 of the Constitution says (emphasis added) “the Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” Compare this with what the Constitution says about treaties: “The President shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.”
That is, if the founders had wanted to specify a super-majority for routine Senate business, they knew how to write that in. They didn’t.
The Constitution’s protection of minority interests in the Senate was enacted through the provision of two Senators for every state, large or small. Not in routine blocking power for a minority faction of those Senators.
Let’s go to an actual lawyer, Thomas Geoghegan, in his latest excellent essay for The New Republic:
“The filibuster is not just a technical violation of Article I [setting up the legislative branch]—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent.”
2. The filibuster enables the very paralysis the founders were desperate to avoid.
Everyone knows that the Declaration of Independence was signed in 1776. Many people know that the U.S. Constitution was signed in 1787.
Most people are hazy about the time in between—much of which was the “Articles of Confederation” era, when the 13 newly independent states suffered under a form of government that was too weak to allow a nascent republic to survive.
The new U.S. Constitution replaced the Articles of Confederation, and was designed to make a central government more responsive to long-term interests of a national majority, and less subject to the blocking power of any minority.
As Thomas Geoghegan wrote this week (emphasis added):
By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place… This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.
It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent.
The coalition of historians and academics who issued their open letter last spring bore down on exactly this point: the danger to governance as a whole, not just “the Biden agenda” or “Chuck Schumer’s Democrats,” through institutionalized paralysis.
Their whole letter is worth reading, and it goes into details of the “anything-but-originalist” history of the filibuster.
But this passage is worth examining with great care. Please compare it to the next bloviating speech or “savvy” talk-show comment you hear about the filibuster’s sacred role in the Senate’s “tradition” and “deliberation”. (Emphasis added below.)
The Framers explicitly rejected a supermajority requirement for common legislation.
In the wake of the Articles of Confederation, which prescribed a supermajority for a variety of federal actions, delegates debating and drafting our Constitution were acutely attuned to the problem of gridlock…
We share a common concern that today’s filibuster is, on balance, weakening Congress — while creating the very supermajority requirement the Founders clearly sought to avoid.
We fear it is also weakening democracy. The U.S. government is now saddled with more “veto points” — features in a political system that can terminate the advancement of a policy — than any other advanced democracy….
This dynamic is untenable for a democracy. A government unable to produce results that significant majorities of the public elect their representatives to deliver is no longer a representative government.
3. Today we have the worst of all worlds, with the ‘silent’ or ‘phony’ filibuster.
As a reminder of the timeline (and see Sarah Binder’s history):
In the beginning (of the republic), there was no filibuster at all.
In the 1830s and 1840s, the first known Senate filibusters occurred.
In 1917, the Senate passed its first measure to limit filibusters. It required a two-third Senate vote, similar to that for ratifying a treaty. With today’s 100-member Senate, that would mean 67 votes.
In 1975, among other changes, the threshold for “cloture,” or ending a filibuster, was changed from two-thirds to three-fifths. But the three-fifths was based on the whole membership of the Senate, or 60 out of 100, rather than the people actually present for a vote. We’ll get back to why that matters.
Also starting in the 1970s, the old-style “talking” filibuster became the modern silent, or phony, filibuster. Senators no longer have to take the floor and orate around the clock, like Jimmy Stewart in Mr. Smith Goes to Washington. They just note an objection, and the measure dies unless supporters round up 60 votes and go through a number of other procedural hurdles.
Rather than going through all the details here, I’ll refer you to two excellent elaborations of the case, by people who have lived through it as senators.
This routine use of the filibuster has changed the culture of the Senate. Previously, it was understood that the Senate, while a "cooling saucer" in President Washington's probably apocryphal term, was in the end a body that made decisions by simple majority. The "silent" filibuster, however, has changed the Senate into a de facto supermajority body….
Rather than seeing obstruction and placing responsibility with the minority, the public sees inaction and blames the majority. Indeed, this is one reason the silent filibuster is so tempting to the minority. Not only can this weapon be utilized with little investment of time and energy, but the leadership of the minority can obstruct the Senate while escaping public accountability.
And, from Al Franken, of Minnesota, a great dispatch (with Norm Ornstein) about his discovery as a Senator of the way the filibuster really worked. As both Merkley and Franken point out, the phony filibuster has become an extremely cynical tool.
First, it positions the blocking minority as unseen, off-scene saboteurs. When Strom Thurmond spoke for hours against Civil Rights legislation, his florid face and fiery obstruction were in the news. When Mitch McConnell raises a finger to require a “cloture” vote, the news is about “failure” and “dysfunction” on the other side. Want an illustration? Try coverage of the Democrats’ “failure” to get 60 votes for their voting-rights bill. (Or this archive.)
Second, it uses extra-cynical math. Most elections and legislative procedures require a majority, or super-majority, of the people who vote. If 210 Representatives vote for a bill, and 209 vote against it, the bill passes—and it doesn’t matter that a couple dozen of them didn’t show up or vote.
But the current 60-vote threshold is absolute. It doesn’t matter how many people vote on the other side. You can get 59 Senators to be present and vote for “cloture” on a bill (i.e., ending the filibuster). And no matter how many vote on the other side, that won’t be enough. Thus we get headlines about measures “failing” on a vote of, say, 59-37, with 59 being the losing side.
As Franken put it:
For many decades, the requirement to stop debate and move to a vote, in the Senate’s Rule XXII, was 2/3rds of senators present and voting. The Senate changed the rule to 3/5ths of the entire Senate.
On the surface, a change to make ending filibusters easier. But it actually raised the bar.
With a present and voting standard, the majority facing a filibuster could go around-the-clock, and minority senators would have to be there, waiting for the possibility of a vote. If, say, only 60 senators showed up, it would take just 40 votes to invoke cloture and move to a vote on the underlying bill or nominee. The burden was on the minority to be there…
The change in the rule perversely put the burden on the majority. Want to go around-the-clock? The minority needs only to deputize one or two of its members to stay in the Senate in order to prevent a unanimous consent agreement to move to a vote. But the majority would have to stick around to make a quorum to stay in session.
Meaning it was the majority senators who would have to sleep on lumpy cots off the Senate floor. But unless they had the sixty votes, that would serve no purpose.
4. The talking filibuster would be a step.
The filibuster is at odds with democracy. It needs to go. On the merits, we have: Manchin, McConnell, and Sinema, versus Hamilton, Madison, and Jay. You be the judge. (As history will judge.)
But at the moment, Manchin and Sinema have the votes, and Madison et al do not. What is to be done?
The “talking filibuster,” which would force opposing Senators actually to show up and speak, rather than invisibly pull the plug, is one of several valuable and feasible steps to defuse this time-bomb for democracy. Al Franken and Norm Ornstein lay out their case here and here. Jeff Merkley’s case from a decade ago stands up. Biden talked about it in his latest speech.
The talking filibuster is not “the” answer. But it is a way to start moving against a threat to the basic functional ability of U.S. governance.
TL;DR: Your guide to the news.
Watch the news coverage this coming week. And, for primer purposes, please recall:
The filibuster is not in the Constitution.
Its modern abuse realizes the founders’ greatest fears.
We are living through a super-cynical, stealth version of the filibuster.
Let’s at least force its abusers out into the light.