The Filibuster: Two Nations Negotiate, Not Two Political Parties

The filibuster is a mechanism by which a minority party that controls at least 41 votes in the 100 member Senate can block passage of any legislation it chooses even if there is a majority in favor. This tactic produces, in effect, minority control of the legislative process. This is clearly an inefficient and an unhealthy means by which to govern. Ezra Klein has provided an excellent summary of the history of the filibuster and of the current activities associated with attempts to modify it in The New Yorker: Let’s Talk: The Move to Reform the Filibuster. 

The Senate-clogging mechanism was clearly not intended by the Founders, but they did allow the two houses of Congress to determine the rules by which they would conduct their proceedings.

"The Constitution expressly specifies the occasions on which majority rule is to be considered insufficient: removing the President, expelling members, overriding a Presidential veto of a bill or a resolution, ratifying treaties, and amending the Constitution."

The path to the filibuster arose accidentally out of an attempt to improve the clarity of the Senate’s rules.

"In 1806, the Senate rewrote its rules to make them clearer. Along the way, it dropped a provision called ‘the previous question motion,’ which allowed a senator to hold a majority vote to end debate on a question, and, in so doing, dropped the only way to stop a group of senators from talking."

This left the senate in the mode of assuming that no members would abuse this path in order to subvert the will of the majority on a major issue.

It wasn’t until 1917 that the procedure was carried to an extreme. At that point a group of isolationist senators talked for 23 days until the senate’s session came to an end in order to block Woodrow Wilson’s intention to arm merchant ships prior to formal entry into World War I. The response to this action was to establish a mechanism for terminating "debate."

"During a special session of Congress....the senate agreed to Rule XXII, which empowered a two-thirds majority of senators to end debate through the procedure known as ‘cloture’."

The filibuster again became an issue when it was used by southern senators as a means obstructing attempts to combat their Jim Crow laws and Policies. Minimal reforms were put in place, but it wasn’t until 1974 that significant changes were made.

"....in the wake of Watergate and the resignation of Richard Nixon,....a huge Democratic majority swept into the Senate....the reformers forced the threshold for cloture down to three-fifths."

There is a valid argument to be made that the filibuster is important in preventing a majority from imposing onerous conditions on a minority. The problem with such an argument is that it cannot conceivably apply to all matters of legislation. Not all laws should require a supermajority.

"There’s no perfect measure of how frequently filibusters occur. The closest thing we have to a count is the number of cloture votes the majority mounts. From 1917 to 1970, the majority sought cloture fifty-eight times. Since the start of President Obama’s first term, it has sought cloture more than two hundred and fifty times. Even that is probably an undercount, as it misses all the moments when the majority just gave up on an issue before a vote was mounted."

The means for changing this procedure have always been available, but party leaders seem to have little motivation to dramatically weaken the right to filibuster. Younger majority Senators are perpetually outraged at the obstructionism allowed. Older senators remember what it was like to be a member of the minority and how useful it was to have the filibuster available as a weapon at those times.

In truth, the controversy over use of the filibuster doesn’t relate to poor procedural rules, or malfeasance on the part of one particular party or the other; it relates to the fact that we have two components to our society and each views the other as an existential threat. When filibusters are invoked today, the two parties are not arguing over the most effective features of a proposed law, they are arguing that their way of life is being put at risk.

Recall that the Founders thought it important to require a supermajority for ratification of a treaty. Treaties are difficult to negotiate because they often involve two nations that have little trust in each other, and the issues can be momentous—even existential. An analogy between contending nations and contending political parties becomes compelling when we consider how diametrically opposed the Republican and Democratic parties are on just about every issue. Whether one wants to describe the situation as liberal versus conservative, North versus South, rural versus urban, religious versus sectarian, libertarian versus communitarian—aspects of all are involved—we are, in fact, two nations trying to live together as one.

One should recall that the United States was created as two nations: slave and non-slave. We have yet to fully overcome that initial division. Conflict flared up and led to the Civil War. It flared up again and resulted in the tumultuous and violent civil rights struggles in the middle of the twentieth century. It seems we have one more conflict to endure. One can draw a straight line across time from the economic and political philosophy espoused by the slave-state South to that of the Southern core of the Republican Party today.

We must decide whether we are a nation of individuals who function better when acting in concert, or we are a nation of individuals who need collaborate only when absolutely necessary. Until we reach an overwhelming consensus on that issue we might as well keep the filibuster rule in place. Perhaps the continuing dysfunction will force our citizens to finally come to a definitive conclusion.