The transformation of the Senate filibuster

By Rick Morain

In today’s America, why should the Senate filibuster determine the course of congressional action, or more accurately, congressional inaction?

The filibuster empowers a minority of senate members to thwart the considered judgment and will of a majority of the Senate on almost all legislative proposals, as well as on bills previously approved in the House of Representatives.
The filibuster has undergone many permutations since it was first employed more than 190 years ago. Today, 40 percent plus one of the senators can stop a bill. It takes a 60 percent supermajority to invoke “cloture,” which halts debate and permits consideration of a bill to proceed in the Senate.

If the two senators from each of the 21 smallest population states wanted to, those 42 senators, representing just 29 percent of Americans, could stonewall the wishes of those representing the other 71 percent. The majority of House members who voted in favor of a bill, representing most Americans, would also be denied.
Whether the President of United States also favored the bill would be immaterial.

Only 13 states permit a state legislative filibuster. Iowa does not, and neither does any state bordering Iowa except Nebraska, which is the only state in the U.S. with a single house for its legislature.
There are plenty of hoops other than the Senate filibuster through which a bill must jump in order to become law. It must win approval in both the House and the Senate, and then be signed by the President. If the President vetoes a bill, it can then become law only through a two-thirds majority veto override in both the House and the Senate. And of course the federal judiciary, especially the Supreme Court, can declare a law unconstitutional.
In the past a Senator who wished to filibuster a bill had to personally stand on the Senate floor and speak against it. Southern senators sometimes held forth as day turned into night (the record for a single senator is more than 25 hours) to beat back civil rights legislation, such as federal anti-lynching bills.

But today all a senator has to do is to file a filibuster notice. That is enough to forestall a bill. No tedious speaking is required.
Both parties have employed the filibuster in America’s past, and many senators resist its alteration or elimination. They often cite the Senate’s reputation as “the world’s greatest deliberative body,” a phrase that sounds ironic today when the filibuster prevents deliberation of much high-profile legislation.

Both President Joe Biden and Senate Majority Leader Chuck Schumer have in the past defended the 60-vote requirement. But now they see it as an impediment. Senator Schumer has been trying to achieve a temporary change in Senate rules to improve the chances of passing voting rights legislation and President Biden’s “Build Back Better” climate change and social benefits bill.

Senator Joni Ernst (R-Iowa) contended in a column last Saturday that changing or eliminating the filibuster would “destroy the Senate” and “destroy democracy.” She cited both George Washington and James Madison: Washington who said the Senate was created to “cool” legislation coming from the House, and Madison who called the Senate a “necessary fence” and the “anchor” of government.

Ernst apparently was implying that Washington and Madison would have favored the Senate filibuster. But it didn’t exist when they would have been commenting. It’s more likely they were referring to the fact that the Senate comprises two senators from each state, rather than the House’s representation based on population. The Senate thereby provides a brake against domination of Congress by the states with greater population.
That’s still true today. The structure of the Senate guarantees that larger states can’t run roughshod over smaller states. What the filibuster does is to push that guarantee beyond what the Founders intended, in terms of a balance between large and small states.

Unlike Washington and Madison, Alexander Hamilton spoke directly to the danger of super-majority requirements in a legislative body. In The Federalist Papers, the widely-published essays that encouraged ratification of the Constitution, Hamilton wrote,

 “To give a minority a negative upon the majority . . . is, in its tendency, to subject the sense of the greater number to that of the lesser. . . . 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 decision of a respectable majority. . . . Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. . . . It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.” (Federalist No. 22)

Bingo, Alexander.