If Senators Won’t Kill the Filibuster, They Should at Least Sweat for It

The US Senate was a mistake. It’s a fundamentally antidemocratic institution that gives political power to land instead of people, and it was structured that way at the request of slavers who worried about losing their “right” to hold people in bondage. Abolishing it should have been part of the conditions of surrender at Appomattox.1

As it is, nothing can be done to change the Senate’s antidemocratic structure. (Article V of the Constitution literally mandates that equal representation of the states must be preserved in the chamber.) But something can be done about the Senate’s anti-majoritarian nature. Ending the filibuster is one way to make the Senate less beholden to a ruthless minority and more responsive to the majority of its members. It’s also the only practical way for Democrats to move their agenda through Congress, because many Republicans just proved they’d rather overthrow the government than work with the Biden administration.2

Unfortunately, senators generally like the filibuster. It gives each and every one of them the power to grind democratic self-government to a halt. That was made evident at the start of the new Senate term, when minority leader Mitch McConnell staged a week of parliamentary temper tantrums to try to force the Democrats to “promise” they wouldn’t end the filibuster. He finally relented when Democrats Joe Manchin and Kyrsten Sinema reiterated their long-standing commitment to keeping it intact.3

But what does that promise really mean?4

The filibuster refers generally to the ability of any senator to delay or block a vote on a bill. But when people talk about ending the filibuster, what they really mean is reforming the rules of cloture. Cloture is the procedure that ends Senate debate and allows the body to vote on legislation and move forward with the people’s business. It’s this process that needs to be changed.5

The cloture rules have been rewritten multiple times over the course of US history. The current rules have been in place only since 1975. That’s when then–Senate majority leader Mike Mansfield, a Montana Democrat, pushed a change to Rule 22—one that allowed the Senate to achieve cloture with a three-fifths majority (60 votes) as opposed to two-thirds (67 votes), which had been the rule since the Wilson administration. That would have been fine, but Mansfield’s new three-fifths majority applied to the total number of senators (all 100) instead of those who were actually in the building at the time a vote was taken. That massively changed how the filibuster could be deployed. Instead of minority senators having to be physically present for the entire filibuster, only a single one needs to be there. In addition, since 1970, Mansfield had allowed the Senate’s work to proceed on “two tracks,” meaning members could continue to debate and vote on other bills while one was held up by a filibuster, awaiting cloture. The age of the “talking filibuster”—think Jimmy Stewart in Mr. Smith Goes to Washington—was over.6

One can see why all this sounded very progressive in 1975. On paper, the change made for less gridlock. In practice, it has been a disaster. The use of the filibuster has skyrocketed, largely because it costs the members of the minority nothing. They don’t have to talk; they don’t even have to be present. And they don’t have to explain to the American people why C-Span is showing Ted Cruz reading Atlas Shrugged for eight hours a day while Americans suffer and die.7

Fixing this doesn’t require centrist Democrats to abandon the filibuster’s anti-majoritarian principles in favor of aggressive progressive policies; it simply requires them to go back and fix one of their own mistakes. Let’s—to borrow a phrase—make the filibuster great again. Let’s require the minority to do something to exercise it. The people who are against cloture should have to be in the chamber, all day and all night, to vote against it. The Senate should have to stop all other business until one side or the other relents.8

I’m confident Democrats would win these battles, if only they would fight them. I can imagine an army of volunteers providing food, water, and moral support to Democrats as they battle to the last to preserve the Affordable Care Act. I can imagine Republicans looking like fools as they filibuster Covid-19 relief. And I can imagine both parties using the filibuster only as a last-ditch effort to protect some cherished belief, not as a de facto requirement that nearly all bills must get 60 votes to pass.9

Are Manchin and Sinema against that? Do they have a principled reason to support the coward’s filibuster?10

We don’t have to nuke the filibuster (though many of us would still like to). We just have to make senators show up to work and account for their actions. That’s not too much to ask. And if it is, well, that’s just another reason we should abolish the whole chamber and start over.11

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