The most important issue in Washington at the beginning of the Biden administration is not a specific policy, but a central structural issue of the government – the fate of the legislative filibuster. The minority leader, Mitch McConnell, recognizes this essential truth, which is why he tried to pledge not to get rid of it, but only gave in when two Democratic senators said they would not get rid of it. In contrast, it is shocking to see David Brooks cheerfully call for its removal when Republicans are using it to “hamper”, as if the filibuster’s purpose in general was not to have a substantial minority important parts of the agenda Narrow thwarted majority. The Democrats used it just like that during the Trump presidency.
The Senate filibuster, which now has 60 senators to vote to end the debate before legislation moves forward on the matter, has existed in some form in the history of that institution – a fact that gives a self-proclaimed conservative like Brooks a pause should be on it before giving up. It could fall victim to our extreme partisanship, but removing it would undermine good governance. The filibuster makes our community more stable, promotes compromises across the aisle, suppresses polarization and protects federalism. It has some cost in terms of clear accountability, but that could be reduced by going back to a regime where senators would have to take the floor to prevent a vote on the matter.
One of the founders’ greatest concerns was the instability of excessive democracy. Elections are a snapshot. They capture the ever-flowing priorities and preferences of voters only at a specific point in time. For example, the troubles that motivated voters in 2020 – Trump’s tweets and a virus-driven recession – could soon fade, even with elected officials empowered to pass a myriad of laws. As a result, at the next election, a new group of representatives who have returned in one election and causing a different group of accidents can repeal this legislation.
Such mutable laws have a significant cost. They make planning difficult for individuals and companies. They decrease respect for law and government in general, as people are more likely to believe that the government doesn’t know what it is doing. At a time when confidence in government is near historic lows, confidence in our institutions must be cultivated, not squandered. A stable rule of law is one of the best ways to generate respect.
There are also a number of more extraordinary laws – such as entitlements or the admission of new states to the union – that are difficult to repeal once introduced and have enormous future consequences, imposing costs on generations who are not voters and may still be unborn. For example, the additional social security benefits that Biden wants to offer are difficult to take away and yet require future generations to pay for them. The filibuster is especially important to this type of law because it is constitutive of the future of our nation. As can be seen from the super-major rules for our formal constitution, consensus is especially important for laws that are difficult, if not impossible, to repeal.
The filibuster also requires a bipartisan buy-in for legislation. It is rare for a party to get a majority of 60 people. As a result, the filibuster anneals the polarization. Democrats and Republicans must convince some senators from the other party to agree on one more move. You can do this through compromise – and that moves the legislation in the middle.
To cover the cost of the filibuster, we could go back to the old-style filibuster, where the senators had to keep the word for hours.
If there are greater incentives to compromise, the polarization is likely to decrease as each party becomes less angry about what it sees as the other side’s passing extreme laws. Of course, in extreme cases, people can get angry that they can’t get everything they want. Although such citizens appear as a majority on Twitter, they remain a distinct minority in our nation. Moreover, the brightest theorists on the right and left recognize that compromise today is an argument for tomorrow’s settlement that inclines even the father to their preferences.
The Senate’s filibuster also protects federalism. After the Supreme Court largely lifted the original constitutional restrictions on national government’s power and the seventeenth amendment disrupted the relationship between senators and their state lawmakers, the filibuster offers the most practical protections of state autonomy. States can choose whether or not to exercise their very extensive regulatory powers, unless there is a 60-vote consensus in the Senate asking them to do something else. This enables citizens in the states of a diverse nation to orient themselves by rules that better suit their desires, as well as rules that suit their social and economic conditions. To take an example from the Biden agenda, a minimum wage of fifteen dollars an hour probably wouldn’t exceed a filibuster due to concerns about various local impacts. Wages and the cost of living are far from uniform across states. Such a minimum wage would disrupt business in states that the majority party can ignore because they are not elected from among them. As a result, some Democrats are making an effort to evade the filibuster and hit the minimum wage by expanding a process called reconciliation, but which is likely to fail.
The filibuster has one major disadvantage. It allows senators to evade accountability for filibustering a bill and still saying they never voted against it on the matter, confusing citizens who don’t understand the intricacies of the legislative process. However, this seems like a relatively small price to pay for the main benefits of the rule. And the filibuster could be reformed to address that problem by asking senators who wish to delay the merit vote to revert to the old-style filibuster made famous by Mr. Smith Goes to Washington, where they speak for hours have to . This dramatizes their position and their opposition to the underlying legislation.
Others have argued that the filibuster is a problem because it exacerbates the Senate’s unrepresentative nature. Forty senators, representing a relatively small number of people, can block the legislation desired by the majority. However, the effect of the Senate’s unrepresentative nature, assuming it is a defect, is not limited to the filibuster but infects everything it does. And without the filibuster, a slim majority, representing a relatively small minority of citizens, could more easily get a bill from the Senate. It is true that the House could block it, but many laws need to be passed to keep the government running and should small states hold a majority they would have a significant impact on the outcome.
Furthermore, in practice it does not seem that the composition of the Senate differs significantly ideologically from that of the House of Representatives. Nor does it systematically favor Republicans. Of the twelve smallest states (with either one or two representatives in Congress), six are blue and six are red. Of the ten largest states, five traditionally vote red and five generally vote blue. In the last generation (since 1990), Senate Democrats have done a little better, controlling for 15 out of 32 years, as opposed to 12 out of 32. The politically similar composition of the House and House of Senate is also suggested by the ideological proximity of its median member when one party controls both Houses.
Defending the filibuster is not tantamount to refusing to reform its practice. At some point the filibuster needed two-thirds of the votes to get to the merits, and that turned out to be too high a hurdle, which prompted the transition to the current 60 votes. In addition, the Senate has eliminated the filibuster for applications to include invoices, thereby streamlining its process. However, the need for a minimum level of national legislative consensus to encourage compromise, mitigate polarization, and protect state autonomy is greater than ever in American history. The filibuster must endure in some form in order to help stabilize our republic, especially in these turbulent times.