To be elected Governor of West Virginia, a candidate needs one more vote than his opponent. This is majority rule at its most basic. Majority rule is also a bedrock principle in our federal system. Accordingly, a bill in the U.S. Senate brought to a vote needs only 51 votes out of 100 Senators to pass. But today the legislative process in the Senate – indeed in all of Congress — has ground to a halt. We cannot address the compelling issues of the day in a way that a majority of voters demand. What has happened to us?
The answer is painful. We have allowed the filibuster, a procedural rule not found in the Constitution or any law, to require proponents to have a supermajority of 60 votes before most legislation in the Senate can pass. This means that those opposing action need only a minority of Senators to block progress. And since any bill passed by the House of Representatives also requires passage by the Senate to become law, the minority that rules the Senate rules the Congress. While the filibuster has existed in the Senate since the mid-19th Century, only in the 21st Century has it been converted to a tool of relentless obstructionism in the entire Congress.
The Constitution Requires Only a Simple Majority to Pass a Bill
The Articles of Confederation, which existed before the Constitution, were a failure in large part because they required a supermajority of nine states out of thirteen to take any significant action. As a result, the federal government could not finance itself or make critical decisions for the nation’s defense and development. Our Constitution was intended to remedy the deficiencies in the Articles of Confederation.
While the Framers of the Constitution disagreed about many things, the importance of majority rule was not one of them. The requirement of a simple majority is not expressly spelled out in the Constitution, but two principles of construction support it. Article I, Section 7 establishes that a bill becomes law when it is “passed” by the House and the Senate and signed by the President. In 1789 majority rule was already established in the British Parliament. Those who ratified the Constitution would certainly have understood “passed” to mean passed by a majority vote. In Federalist 22, Hamilton called majority rule the fundamental maxim of republican government and argued that minority veto power would lead to “tedious delays, continual negotiation and intrigue and contemptible compromises of the public good.” This is an apt description of today’s Senate.
During the Constitutional Convention, a proposal was made to require a supermajority for the passage of bills in Congress. It was rejected. The only exceptions were for special circumstances, such as impeachment and overcoming a Presidential veto. Obviously, the Framers knew how and when to impose a higher bar for action when they felt it advisable. Their silence on the number of votes necessary to “pass” normal legislation is telling.
A Short History of the Filibuster
The Constitution bestows on the Senate the right to make its own procedural rules. From 1789 to 1806 Senate rules allowed debate to be ended by majority vote on a motion called “the previous question.” In 1806 – by mistake – the Senate omitted that rule from its procedures, leaving no way to cut off excessive debate. It was not restored in subsequent years because Senators favored full debate without limitation. But there was always an understanding among Senators that when debate had been fully aired a vote would be taken and a simple majority of votes would prevail.
The original filibusters involved a Senator holding the floor continuously, much as in the movie Mr. Smith Goes to Washington. But talking a bill to death did not begin until the 1840s. There were few of these filibusters compared to today and they were limited to issues of high passion and import, mainly slavery. In 1917 opponents of entering WWI filibustered legislation permitting the arming of merchant ships. The public was outraged, leading to adoption of Senate rule 22 allowing debate to be closed by a vote of two-thirds of Senators present on the floor. It now requires three-fifths of the entire body (60 votes). In this way a minority of 41 Senators can kill a piece of legislation. Routinely this minority of Senators represent a minority of the population.
The Filibuster Became the Favorite Tool of Slave Owners, Racists and Opponents of Civil Rights
The filibuster’s soiled reputation is primarily the result of its shameful use by Southern Senators to protect the institution of slavery, then to protect Jim Crow laws and practices in the South, then to oppose civil rights legislation. Today it is being used by much the same group to oppose voting rights legislation.
Senator John C. Calhoun of South Carolina was the intellectual architect of the notion that a minority should have a veto over the will of the majority. In 1828 he developed the concept of nullification by which individual states could decide which federal laws applied to them. In the 1840s he merged the previously rare filibuster with his argument for protecting minority rights. He then employed this to oppose any measure that even remotely threatened slavery. In Kill Switch, author Bruce Jentleson described Calhoun succinctly.
Calhoun was the foremost political leader of the closest thing America had to an aristocracy, deriving his power from the support from the planter class of the antebellum South. By using that power to protect slavery he prolonged the suffering of the most oppressed minority imaginable.
But the racially oppressive use of the filibuster didn’t end with the abolition of slavery. In 1922 Southern Senators filibustered and killed legislation making lynching a federal crime. This was the start of their calculated obstruction of all civil rights bills. Thereafter Southern Senators organized themselves into a bloc that would regularly meet to map out filibuster strategy. They successfully filibustered anti-poll tax bills four times in the 1940s. They blocked fair employment practices legislation in the 40s and 50s. Their opposition to the 1964 Civil Rights Act led to a two-month filibuster. This is a short list – there is much more.
Those Senators who defend the filibuster today with high-sounding principles are the heirs of this disgrace. Their justifications are based on a false alternative history. In truth the filibuster exists now solely to benefit the minority of the population who elect this minority of Senators.
Defenders of the Filibuster are Wrong
There are many reasons given by defenders of the filibuster. Here are the major ones. The Senate has the Constitutional right to make its own rules, even a rule that requires a supermajority. The filibuster is a tradition of the Senate, preserving free speech and debate. It protects small states from being overwhelmed by large ones. It protects minority interests from being overwhelmed by the majority. It permits tempering of hasty, ill-advised legislation sent over from the more democratically elected House. And finally, it promotes bipartisanship. All are unpersuasive and easily exposed.
What really motivates Senators who defend the filibuster these days is political power. In their important book Politics or Principle? Filibustering in the United States Senate, Sarah Binder and Steven Smith show convincingly that filibuster Senators are not motivated by bipartisanship, protecting minority rights and free speech, or any of the other neutral principles commonly asserted.
Senate rules protecting Senate debate have lasted . . . because the rules serve as a foundation of senators’ personal political power. Senators’ positions on procedural reform follow predictably from their political interests.
The current filibuster Senators enhance their political power by satisfying their constituency’s negative partisanship – stopping what their Democratic opposition wishes to accomplish. The voters represented by these Senators, while a minority nationwide, are the strongest opponents of social change in the nation – the same political profile owned by Calhoun’s antebellum constituency. In Kill Switch, Jentleson cites research concluding that the “voters and interests on whose behalf Republican senators wield power represent a reactionary faction far to the right of the American mainstream” and that they are “one of the farthest right factions in any modern democracy worldwide.”
It is true that the Senate can make its own procedural rules, but this cannot mean that in so doing it can nullify other Constitutional principles. For example, the Senate could not adopt a procedural rule that says states with fewer than 2 million inhabitants (West Virginia included) can only have one vote in the Senate on major legislation. The Senate could not adopt a procedural rule that only bills passed by the House with substantial bipartisan support will be considered by the Senate. A procedural rule is only that. It cannot shift the substantive balance created by the Constitution.
The argument that the filibuster protects free speech and debate is laughable. Perhaps once filibustering Senators who read the phone book on the Senate floor as part of their debate might make that argument. Now the filibuster protects no debate – it prevents debate. To commence a filibuster a Senator merely must send an email indicating he intends to filibuster. He is not required to show up or speak a single word on the Senate floor. He is not required to persuade anyone of the merits of his views.
Supporters of the filibuster claim that it protects smaller states from being swamped by the power of states with larger populations. The Framers of the Constitution considered this risk and their solution was to give each state two Senators regardless of population. That was it. This already gives small population states an outsized power in the Senate. For example, a vote from a Senator from Wyoming is cast on behalf of only 573,900 people. A Senator from California casts a vote on behalf of 39,467,000 people. And empirically it is not true that small state Senators use the filibuster disproportionately to protect their states from the power of larger states. In a 70-year period studied by the authors of Politics or Principle? small state Senators voted to cut off filibusters as often as large state Senators.
Finally, there is the canard that retaining the filibuster somehow promotes bipartisanship. Senator Kyrsten Sinema has recently said that the way to fix the Senate is to “fix your behavior, not to eliminate the rules or change the rules, but to change the behavior.” Whose behavior? The Republicans certainly aren’t changing theirs while the filibuster is in place. Senator Mitch McConnell told reporters in Kentucky that “one hundred percent of our focus is stopping this new administration.” His “bipartisanship” apparently has nothing to do with whether a majority of voters – Democratic, Independent and Republican – favor a bill. Bipartisanship in this age of the filibuster amounts to the minority party requiring huge concessions from the majority if there is to be legislation at all.
The Sad Case of Senator Joe Manchin
Senator Joe Manchin of West Virginia is a good man in a tough spot, but he has painted himself into a corner and made it much worse for himself. Manchin, who vows to protect the filibuster, is one of its poster-child victims — he among all others should know the corrosive effect the filibuster has on democracy.
In 2013 Manchin and Republican Pat Toomey co-sponsored a bill in response to the Newtown, Connecticut massacre of first graders. The bill set up a reasonable system of background checks for gun purchases, which nine out of ten Americans supported. Manchin and Toomey lined up broad bipartisan support from 55 Senators. But there was no great debate on the Senate floor, just quiet failure in an empty chamber. The bill was defeated by 45 Senators, who represented just 38% of the American public. In a democratic system that functions, this bill would have passed. More recently, Manchin reacted in anger when 45 feckless Republican Senators killed the January 6 Commission bill.
In a June 6 op-ed piece, Manchin offered two basic reasons why he will not vote to eliminate or weaken the filibuster. One is based in the principle that the filibuster prevents abuse by the majority party. “The Senate, its processes and rules, have evolved over time to make absolute power difficult while still delivering solutions to the issues facing our country and I believe that’s the Senate’s best quality.” But the Senate filibuster most certainly did not evolve for this high purpose and, as for delivering solutions, ask the parents of the murdered Newtown children. Not even Manchin can argue that legislative action in the Senate is robust and effective.
Manchin’s second reason is not principled. He points out that the Democrats who now want to eliminate the filibuster sought its protection when Republicans controlled Congress and the Presidency. More than a claim that Democrats are hypocritical, the argument is that if we do it to them now, they will do it to us later. This is, of course, true to some extent but we need to look ourselves in the mirror and decide whether this is a democracy or not. If it is, then the remedy for Republican overreach is defeating them at the polls, not with some bogus Senate procedural rule.
I have heard the lament that if Democrats eliminate the filibuster and pass the For the People Act and other progressive legislation, Republicans will simply repeal them with a majority vote when they take power again. Obamacare has shown this is easier said than done. But I would suggest that it is better to have legislated and suffered a repeal than never to have legislated at all. In Federalist 22, Hamilton wrote that requiring a supermajority for legislative action might give us the false sense that nothing bad will be done, but “we forget how much good may be prevented, and how much ill may be produced, by the power of hindering that which is necessary.”