Gary Lerude

March 21, 2021

More on the Filibuster

The Washington Post's Post Reports podcast did a comprehensive story about the filibuster on Friday, covering its origins, evolution, and current arguments about modifying or eliminating it. Very well done. For me, the takeaways are:

1 — The founding fathers did not implement the filibuster, nor support the idea.

Adam Jentleson, author of the book "Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy," said, 

The evidentiary record is very clear on this. They were anti-obstruction. They wanted the Senate to be a place for thoughtful debate, but they made very clear that they were aware of the risks of letting a numerical minority block the majority after a reasonable amount of time. This is because they had just had firsthand personal experience with the Articles of Confederation, which did require a supermajority threshold in its Congress for most major pieces of the legislation, and that had been a disaster, and so the framers were very clear that, within this complicated system of checks and balances they created, every decision point was supposed to be majority rule. They wanted bills to pass through this system in a deliberate and thoughtful way. But if they had majority support in the House, majority support in the Senate, and could be signed by a president, they should pass into law.

2 — The filibuster is not foundational to our system of government. It's actually ignoble.

The implementation of unlimited debate was first used to maintain the power of the southern states and block abolitionists from gaining power. Daniel Holt, a historian of the U.S. Senate, said,

So the first examples of filibusters really comes into its own in the 1840s and 1850s. You start getting these organized, long, marathon speeches to block legislation, especially surrounding organization of territories and the admission of new states because of what this meant for the balance of power in the Senate over slavery and free states.

After the Civil War, the filibuster was used by senators to block civil rights legislation ensuring the vote for Black Americans.

"One of the most noteworthy ones is in 1890, when Democratic leader Arthur Pue Gorman of Maryland orchestrates a filibuster to block a Republican bill to protect African-American voting rights in the South. This filibuster is noteworthy because it's really kind of the last effort that Republicans put forward to protect Black voting rights, and it succeeded and prevented that bill from passing." — Daniel Holt

In 1917, the Senate established cloture as a formal procedure to end a filibuster, which required two-thirds of those present to vote to end debate — even though the legislation they were debating would require a simple majority to pass. In 1975, the rules for cloture were amended to require a vote by 60 percent of all senators, not just those present, and to allow a senator to simply indicate the intent to filibuster, not actually do so.

3 — If it ever did, the filibuster no longer improves the deliberative process of the Senate.

The Senate's descent into gridlock belies the argument that the filibuster leads to thoughtful debate and bipartisan compromise. It has not. The mixture of the rules for ending a filibuster and our very polarized politics enables the minority to stop the passage of legislation it doesn't favor. Minority party senators can play to their voters through social media and the cable networks, their chief goal to promote themselves and win the next election — not governing the country unless they win the majority in the next election. Then the tables turn.

Mitch McConnell doesn't want to cede this power, threatening the apocalypse if the filibuster is eliminated. Speaking on the Senate floor last week, he said,

Nobody serving in this chamber can even begin — can even begin — to imagine what a completely scorched-earth Senate would look like.

Hard to imagine it can get much worse than it is.

4 — Reforming the filibuster is necessary to upset the stasis in the Senate.

Adam Jentleson is hopeful reform would improve the ability of the Senate to function, rather than lead to the outcome McConnell threatens.

You know, it would take some time, but I think what you would start to see is that the minority would realize there's not a whole lot of point in their opposition because they can no longer achieve what they could achieve in the past, which was to block the majority from passing anything. And so you might start to see members of the minority creep back over and say, "I'm actually interested in working with you on this," because if you cooperate, you can actually have some influence over the direction of the legislation, and you can actually go back to your own constituents and say that you did something. And this is actually what you used to see happen in the Senate.

I hope Jentleson is correct. To find out, we need to break the gridlock and hostage taking by a minority party and return to the founders' concept of majority rule. The purpose of government is to govern, meaning address the issues facing the country and our role in the world. It's not to debate ideology 24 x 7 over Twitter, the cable networks, and, occasionally, at the Capitol.