3 ways to improve Congress – Part III: Protect the filibuster

Gridlock has become a dirty word. It’s the first culprit cited when we get frustrated with Congress not passing enough legislation or any at all.

This invariably leads to calls to eliminate the filibuster, which is the procedural tool that lengthens debate in the Senate and requires a supermajority of 60 votes to pass most bills. Thus, the filibuster, as the argument goes, causes “gridlock.”

But the filibuster doesn’t actually cause gridlock. In fact, it’s an incredibly important feature of the Senate that should remain intact.

Both Republican- and Democrat-led majorities have incrementally removed some power from the filibuster in recent years (2011 and 2018). It’s imperative the Senate exercise restraint from further weakening the filibuster for three reasons –

It embodies the Senate’s fundamental aims of curbing majority rule and promoting legal stability.
It doesn’t actually cause “gridlock.” It reveals an existing lack of consensus.
It forces more civil and thoughtful political discourse.

To appreciate the filibuster, first consider the Senate’s purpose.

The Senate was designed to function as the older, wiser chamber of Congress where legislation borne of passion or whim in the House of Representatives would go to “cool.” It is the perpetual defender of sober reflection and a blockade to the reckless passage of precarious laws.

These objectives are preserved chiefly by procedural rules but also by who is eligible to serve. Afterall, it wasn’t until the 17^th Amendment to the US Constitution in 1913 that senators were even elected directly. Before then, state legislators appointed US senators under the assumption that entrusting power of elections to those already esteemed by local communities rather than to the public at large would better maintain the requisite caliber of legislator demanded by the Upper Chamber. Now a higher age threshold is all that’s required to serve.

But the founders knew that relying solely on the “right people” was risky. So they designed the Senate in a way that structurally curbs the tendencies of majorities to violate the institution’s values. In contrast to the House, for example, each state is given the same voting power regardless of size (two senators per state). This has a moderating effect on the Senate’s actions.

The filibuster, by slowing the legislative process and making it harder to pass bills, is another key feature of curbing majority rule. So the manifestation of the strong minority voice in the Senate is not necessarily passage of legislation; rather, it’s the ability to slow or stop it altogether. Indeed, the filibuster has thwarted passage of numerous bills over the years.

Some argue it’s not fair to give such power to a minority or even one person. But it’s important to remember that, as one ingredient of many to our country’s checks and balances, there are limits to the filibuster’s reach.

For every power, there is roughly an equal but opposite power to balance interests. For example, a senator can only singlehandedly block passage of a bill if it’s attempt at passage was by “unanimous consent”, i.e. it not voted on by the Senate. The stalemate can then be broken by bringing the legislation to vote in the full Senate.

Others argue its immoral. Certainly, as with most things, the tool is subject to abuse as it was in the post-reconstruction area by southern senators. However, the rule itself is not to blame; the senators who used it to oppress fellow Americans are. This serves as a stark reminder that voters must exercise the utmost discernment when electing their senators.

It’s not “gridlock.” It’s preventing the majority from forcing its will on others

We need to redefine gridlock. It’s the inability of the Senate to garner 60 votes in order to proceed on a legislative matter, which is simply another way of saying a bill must reach “consensus” to pass. This is not a bad thing.

Defining it in this way removes some of the stigma around the filibuster. There is always an opportunity to pass legislation or move forward on a bill; it simply requires a higher vote threshold to do so. The alternative would be creating laws via brut force, which is not an ideal way to run a country.

The Senate isn’t intended to be efficient, regularly churning out legislation of all kinds. it’s purpose is to protect minority interests and moderate the impulses of majorities.

The filibuster may well slow down some initiatives that would have proven good, but it most certainly prevents passage of extreme, impulsive, and mis-guided proposals on both sides of the political spectrum. This tension is not a new phenomenon. James Madison explicitly acknowledged the trade off in Federalist 62 and deemed it appropriate as a gatekeeper for good ideas.

Therefore, legislation that does ultimately pass almost always achieves bipartisan consensus. This makes for more durable laws and more certainty for what the rules of the road are in America.

So the real question is: if a proposal can’t generate 60 votes, why should it move forward? What is it lacking that others won’t join the effort?

The filibuster forces us to engage our political opponents better

When forcing passage of legislation isn’t an option, we’re left to convince others to join our cause. Instead of retreating inwards towards the safety of our own tribes, we’re compelled to turn outwards and engage our opponents. In this way, the filibuster is a moderating influence that reminds us to build bridges with others and forces us to construct sound logical arguments that resonate with those not naturally disposed to our view.

The byproduct of developing sound and reasoned policy positions is greater self-reflection. As we pursue intellectually honest positions, we ensure that what we advocate for is, in fact, merited and worthy of convincing others. Too often we blindly follow political parties or political personalities that stray from principles instead.

Another alternative to forcing ourselves to think through issues better is to simply demean opponents in one way or another as a means of shaming them into submission. This is the lowest form of politics and, unfortunately, no stranger to the Senate. But ultimately the filibuster forces us to overcome this defensive tactic.

The filibuster promotes compelling policy arguments in lieu of political power plays. We simply have to build consensus by convincing others, and there’s no way around it.

Conclusion

It’s easy for the party in power to grease the wheels of the legislative process by diminishing the Senate’s filibuster rules as we’ve witnessed from both parties over the last decade. But we would do well to remember that whatever party we belong to will inevitably find itself in the minority at some point in the future. In these times, we will rely on the filibuster to safeguard against legislation we oppose and ensure the inclusion of minority viewpoints.