A spate of articles over the summer from Richard Arenberg, Norm Ornstein and Ronald Brownstein, as well as remarks by former President Barack Obama at the funeral of Rep. John Lewis, have fueled a vigorous debate over the merits, liabilities and necessity of ending (or modifying) the Senate’s filibuster tradition. Should Democrats win this November’s trifecta and control the White House, House of Representatives and the Senate, precious little of a Biden agenda will see the light of day in any recognizable form if it must surmount Rule 22’s 60-vote supermajority in the Senate.
Historically, requiring a supermajority to end Senate debate was intended to provide the minority at least one step in the legislative process to flex its muscle and force concessions. But the filibuster no longer is employed to address the minority’s understandable frustration at being at a legislative disadvantage. Filled with what former Sen. Byron Dorgan described as “100 human brake pads,” the current filibuster doesn’t pause the process to allow the minority to engage; it kills the process dead in its tracks. What the Senate needs is fewer brake pads and more an ignition switch.
But even if it functioned as intended, the filibuster enables a dangerous and anti-democratic distortion of the functioning of Congress. The Senate is already a patently undemocratic institution merely due to its constitutional design. When the Constitution was ratified, the ratio between the largest and smallest states — each having two senators — was 17:1. Today, that ratio has swelled to 70:1, and while large and small states do not break down as reliably favoring one party, the power of a large number of small states to influence the legislation affecting the vast majority of Americans defies the basic principles of democratic governance.
The filibuster exacerbates the undemocratic nature of the Senate by undermining equity between the two houses of the Congress. Specifically, disproportionate power in the Senate undermines the influence of people of color and women who are far more significantly represented in the House. By creating what is often, in a closely divided and ideologically partisan Senate, a nearly insurmountable barrier to passing legislation, the filibuster gives senators the ability to pressure House members, and the diverse constituencies they represent, to either accept whatever version of legislation can squeak its way through the Senate or accept the inevitability of inaction.
Senators might complain about the problems the filibuster presents, but they also relish the parliamentary advantage the 60-vote margin affords them over the House. Every House member involved in negotiations with the Senate has been told the House version is dead on arrival in the Senate, and the House must take whatever can get 60 votes in the Senate. Those Senate versions, not surprisingly, often are less generous to minorities and low-income people and more generous to the special interests of individual senators whose votes are needed to achieve the cloture level. For decades, such demands have been leveled on legislation from public lands to tax policy, including major bills like TARP and health care. House majority leader Steny Hoyer (D-Md.) has derisively characterized the ploy as the Senate’s “my way or the highway” ultimatum.
House members fume at the leverage the filibuster provides the Senate. One can expect that should Democrats gain the majority, it is inevitable there will be massive pressure to end the practice. Speaker Nancy Pelosi (D-Calif.) has been outspoken on the issue for years. “The public doesn’t want to hear about 59 votes” not being enough in the Senate to pass legislation, she told Sen. Mitch McConnell (R-Ky.) in mid-2009. “They don’t understand it, and they’re not sympathetic.”
More than a decade later, the public may be focused on issues other than arcane Senate rules. But if there is any chance to reinvigorate the legislative process, which is vital to restoring public confidence in democratic government, it is inarguable that the Senate’s self-serving but destructive filibuster rule needs to go.
The late Senate Majority Leader Robert Byrd called the filibuster “a necessary evil,” and warned that without it, “there would also be no Senate, as we know it.” These days, that sounds like a change most Americans, and certainly most House members, would welcome.
John A. Lawrence, former chief of staff to Speaker Nancy Pelosi, is the author of “The Class of ’74: Congress After Watergate and the Roots of Partisanship” and a visiting professor at the University of California’s Washington Center. Follow him on Twittter @JohnALawrenceDC.