It’s Time To End The Filibuster
The new Congress is starting to organize. They are thinking about the rules. They are still operating under the myth that the rules may be set only with a 60 vote majority. And they are still operating on the myth that the minority has so much power that they can set the rules to their liking. That 60 vote majority requirement to change the rules does not come from the Constitution, it comes from the idea that the present-day Senate can be hogtied by the dead hand of the last Senate.
In this article by former Senator Tom Udall, we learn the following about the Senate Rules:
“As currently written, the Rules are unconstitutionally entrenched against reform: there are specific rules, adopted during previous Congresses, which prevent a majority of the current Senate from implementing necessary reforms.”
What that means is that no Congress should be able to prevent the next Congress from changing their own rules as they see fit. In the Senate, the filibuster requires 60 votes just to change the rules and eliminate or reform the filibuster. According to Udall, every congress has the power to adopt new rules at the beginning of the session, by majority vote. The previous congress is no more powerful than the present one.
There is nothing noble about the filibuster. It does not protect the minority. It provides too much power to the minority and prevents the work of the people from being done. We have gridlock now because the Republican minority wants it. They have always wanted it. Unless Trump is president. Then gridlock would be bad. Has anyone noticed that Trump vociferously attacked the filibuster?
The Democrats now have a slim majority of 51 votes if you count Kamala Harris. But there are two Democrat Senators that are against reforming or eliminating the filibuster: Joe Manchin and Kyrsten Sinema (please, primary them). Both Democrats have said they want to preserve the filibuster as a gesture of bipartisan goodwill. This is despite a scorched earth policy by Senate Republicans in the last four years. Republican unity in the Senate has resulted in the gridlock that has prevented 400 House bills from even reaching the floor of the Senate for debate. Once again, I see a few misguided Democrats preaching unity and healing, without any sign of a corresponding sentiment from the Republicans of that very chamber.
According to this article at the Brookings Institute, cloture motions are a useful proxy to see how often the filibuster is used:
There’s no perfect way to measure the frequency with which the filibuster has been used over time. Senators are not required to formally register their objection to ending debate until a cloture motion actually comes up for a vote. If Senate leaders know that at least 41 senators plan to oppose a cloture motion on a given measure or motion, they often choose not to schedule it for floor consideration. But the number of cloture motions filed is a useful proxy for measuring filibusters, and as we see below, the number of such motions has increased significantly during the 20th and 21st centuries.
Wikipedia has a useful chart to show the rise of the cloture motions:
I note with interest that the trend of filibuster abuse starts to ramp up in the early 70s and takes off around the time that Obama took office. This is consistent with another trend, inequality:
So it would seem to me that the filibuster trends with inequality. If I were a mind reader, I’d think that the 1% are very much concerned that the people at the bottom might notice what’s been going on, and that those bottom feeders might want to change the rules that gave rise to all the asset inflation, stock and real estate bubbles and of course, bigger and longer recessions. I’m not a mind reader, but it sure seems like the purpose of the filibuster is to protect the American aristocracy.
Joe Manchin and Kyrsten Sinema say that they want to keep the filibuster because they believe that the filibuster encourages compromise. No, true compromise doesn’t come from power, it comes from a lack of power. People with real power don’t compromise unless they have to.
If you pass a bad law, someone else can always change it later if there is no filibuster. The point of the filibuster then is to prevent change, not to allow it. The allure of the filibuster is the hope of attaining unassailable power, license to act with impunity and without compromise. The problem with the filibuster is that it encourages minority rule. Alexander Hamilton had this to say in The Federalist Papers #22, about requiring more than a majority to get anything done:
“But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.”
He continues later in the same paragraph, rather presciently:
“The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
Hamilton nailed the U.S. Senate of the last 4 years and now, right there. Your Originalist, Tea Party senator will deny it.
So Mitch McConnell seems, I don’t know, er, um, happy. From Politico, just yesterday:
“Today, two Democratic Senators publicly confirmed they will not vote to end the legislative filibuster,” McConnell said in a statement. “They agree with President Biden’s and my view that no Senate majority should destroy the right of future minorities of both parties to help shape legislation.”
I heard something else from Mitch:
“The ring! The ring! My precioushhhhh! Get the ring!”
McConnell lives in the feigned fear that the minority will not be heard. Someone is taking dictation in the Senate. Every word will be transcribed, Mitch. Every single word. Those words will show up in the Congressional Record. All of them. The minority will be heard by someone somewhere. Judges will look to that record in order to divine the intent of Congress when a law is contested in court. Besides, Mitch didn’t seem all that concerned about the minority’s ability to influence legislation when he kept 400+ bills from ever reaching the floor of the Senate.
Without a filibuster, we lose the gridlock, and more to the point, we force the Senate to appeal to a larger number of people. Every Senator gets one vote on a bill. That will never be destroyed. What McConnell fears is demographics. He knows the nation is tired of going to the right. He knows that the nation is turning brown and that by 2040, it’s going to get rough for Republicans. He knows that if he loses the filibuster, the right will have little power over legislation. Well, if that’s the case, then Republicans had better figure out how to appeal to more people if they want to stay in power.
The point of even having a legislature is to delegate enough power to the government to get the will of the people done. A filibuster that requires 60 votes to end debate subverts the will of the majority to conform to the wishes of an impudent and petulant minority, presently represented by Mitch McConnell.
If you’re in the minority, you’re going to have to get along. Don’t worry, we won’t blow up the country. We like to live here, too. We just want some cooperation, that’s all, and we also want to make the United States a great place to live. Just like you.