Killing The Filibuster Does Not Stifle Debate
With the way the filibuster works now, there *isn’t* much debate, anyway.
I’ve heard both sides of the debate on the filibuster. One point that has been amplified in the discourse on the filibuster is that the minority should be heard. They say that the minority would be ignored without the filibuster. Yeah, I get that.
I find it odd that in all this talk about how terrible things will be if we kill the filibuster, that few are willing to discuss the fact that former Senate leader Mitch McConnell had tabled nearly 400 bills. Many of those bills had bipartisan support in the house, and still, they never saw the floor of the Senate for even a debate much less a vote. And that is with the filibuster steadfastly in place in the United States Senate.
So even with the filibuster, debate is stifled. There are plenty of ways to stifle debate without a filibuster and as we have seen during the era of Trump, debate can be stifled by not even bringing a bill to the floor. Those who would warn us against changing the filibuster are, in my view, hiding something. If the filibuster is intended to ensure that the minority is heard, how is it that the minority can deploy the silent filibuster?
The silent filibuster is simple. All one needs to do is threaten to filibuster, and a bill is killed, knowing that 60 votes are required to overcome it. I’m not even talking about taking the podium like they used to do, all one needs to do is give a nod to the Senate President Pro Tempore with a threat of a filibuster and that’s that. That is not a debate. As David Repass at the Atlantic noticed just over ten years ago today in his article, “Why the ‘Silent’ Filibuster Is Unconstitutional”:
In recent years, cloture [a motion to end debate and a filibuster] has been turned upside down. Now all the minority needs to do to prevent a bill from even reaching the floor is simply to threaten to filibuster. Debate never begins. Real filibusters almost never take place. This is called a “silent” filibuster — an oxymoron if there ever was one.
How is a silent filibuster a debate? How exactly is the minority “heard” during a silent filibuster? It’s not. The silent filibuster is more like a veto than a debate. No objections are heard. There is no negotiation on the floor. The silent filibuster, now that I think about it, is perfect for making backroom deals between the senators and with industry if one is so inclined. So if you're in the minority and you want to be heard, don’t say nuthin’.
The silent filibuster is so convenient. With it, you can kill a bill and no one will ever learn that you did. What happens in the backrooms of the Senate, stays there. Voters will never know your true objections to a bill so that it can be corrected. There will be zero political cost to killing a bill. Heck, if you wanted to hobble the majority and cost the sitting president the next election, you could do that with a silent filibuster. A filibuster is a great way to win a midterm election.
With a silent filibuster, it’s easier to blame the current president for our woes than to admit that legislation critical to the success of the current president depends on the enactment of his legislative agenda. Even Trump wanted to kill the filibuster.
The advent of the filibuster was an accident. According to Tom Udall, the former senator from New Mexico, you know that state next to “old” Mexico, a minor rules change made a filibuster nearly impossible to stop:
The original Senate Rules included a parliamentary procedure called “a motion for the previous question,” which could be used to close debate by a simple majority vote. The Senate dropped the procedure in 1806 because, at the time, the Senate had few issues with obstructionist tactics and figured the procedure was unnecessary. This left the Senate open to filibuster by even a single senator, because without the motion on the previous question, the Senate would have to rely on unanimous consent agreements to close debate. Despite this, no filibusters were even attempted until the 1830s.
Come back now to the present day, and we see that the word filibuster is used in the news on a daily basis. The filibuster has become the fulcrum of power in the Senate. They bandy that word about like a morning star, swinging it wildly until any notion of passing a targeted bill is submerged for good. And now they can kill a bill silently, with no regrets, they have turned the Senate into a graveyard of thousands of great ideas that will never come to pass so long as there is a filibuster.
I remember a real filibuster once. It was Bernie Sanders talking for eight and a half hours on the Senate floor, in opposition to a tax bill crafted by then vice president Joe Biden and Senate Minority Leader, Mitch McConnell. That was a speech with real political costs and benefits. That was the last speaking filibuster that I can remember.
And for those pretended defenders of the great institution of the United States Senate, Tom Udall has provided us with a quote from historians and legal scholars who have actually studied the history of the Senate, constitutional law scholars Catherine Fisk and Erwin Chemerinsky:
[A]lthough the Senate tradition of careful deliberation and unlimited debate may have justified the filibusters of yesterday, the smaller size, lighter workload, and more collegial culture of the pre-1950 Senate imposed significant limits on the ability of the minority to use the filibuster to thwart the majority. The modern filibuster, by contrast, has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.
And if you really think that the filibuster has made our country more stable and secure, here are a few things that have tracked nicely with the abuse of the filibuster:
- Extreme inequality
- Mass shootings
- Legislative gridlock
- Political polarization
- Deep recessions
The rise in the abuse of the filibuster started in earnest in the 1970s and has only gone up from there. So have the above types of incidents and trends. The abuse of the filibuster is a remarkable indicator of present trends. The filibuster is a silent wish for permanence, something that nature is predisposed to destroying. Our ability to survive does not rest on permanence, it rests on our capacity to change. The filibuster is the greatest national impediment to our capacity to change.
Our ability to survive as a nation is dependent on our capacity to change. The filibuster impairs our ability to change and adapt to changes beyond our control. When a silent filibuster is deployed, we can’t debate the minority objections and concerns if we don’t even know what they are. If the members of the Senate do not have the political will to kill the filibuster, then they can at least make the minority talk until they drop, and then pass a bill on a 51 vote majority. Then we can make the filibuster cost something. You know, like an election.
I say it’s time to kill the filibuster before it kills us.