Comment: The filibuster’s days are numbered; unfortunately

Until it became the default block for all legislation, the Senate filibuster actually worked well.

By Jonathan Bernstein / Bloomberg Opinion

If you want to see the future of Congress, look to Minnesota.

Democrats there achieved unified government in the 2022 midterms, winning a one-seat margin in the state Senate. With it, they managed in their just-ended session to enact “nearly their entire legislative agenda,” as one local report put it. The raft of new legislation included tax increases and tax breaks; child-care funding; infrastructure spending; legalized marijuana; abortion access; gun restrictions; paid family leave; free school lunches for all; and automatic voter registration.

Lawmakers didn’t accomplish everything Democrats wanted, but they came close. What’s striking is that the adoption of an incoming majority’s agenda isn’t all that unusual in state government. Michigan Democrats are doing similar things this year; some might recall Republicans after the tea party elections of 2010 enacting major legislation in Wisconsin and elsewhere.

Indeed, the anomaly is the U.S. Congress, which accomplishes relatively little even when both houses and the presidency are controlled by one party.

One big reason Congress is different is the existence of the Senate filibuster, a longstanding rule that in its current form allows the minority party to block votes on measures that don’t have the support of a supermajority of 60 senators. Once deployed only on some major bills, the filibuster is now attempted and must be overcome on nearly every bill and amendment. The filibuster has prevented both Democrats and Republicans from achieving more of their policy priorities.

In the 2021-22 Congress, when Democrats controlled both houses of Congress and with Joe Biden in the White House, they were still stymied by Republican filibusters. Democrats are justifiably proud of passing several laws that helped get people and the economy through the pandemic while also addressing infrastructure, climate change and health care. Yet their entire voting-rights agenda was blocked, and so were a number of other bills on topics ranging from worker protections to abortion. Democrats encountered similar problems in 2009-10, while Republicans were thwarted by the filibuster in 2017-18.

Various states, including Minnesota, have supermajority requirements for some measures, but there is nothing like the U.S. Senate’s filibuster in any state. As Democrats in Minnesota just demonstrated, winning elections in the states generally leads directly to passing of laws that the winning party wants.

For better or worse, that’s what Congress is going to be like before long. The need to secure 60 votes on every Senate bill and amendment simply isn’t sustainable; parties aren’t going to be willing to lose regularly after having secured a simple majority. The next time a party holds the White House, a majority in the House and a comfortable majority of 53 to 58 senators, the filibuster will be history. (The larger the majority, the more policies that party will be able to enact even if there were no filibuster, and so the stronger the incentive to eliminate it.) We already saw pressure to end the filibuster from Democrats in 2021-22, but with the smallest possible majority they didn’t have the votes to do it. With a larger majority, the votes will be there.

It’s easy to imagine that the results will be more democratic. If the people elect a party to make policy changes, shouldn’t that party be able to do so?

Well … it’s complicated.

For one, just because a party won an election doesn’t mean that voters endorsed its entire platform; or even major portions of it. Take Minnesota. Some voters surely did vote for Democrats because they wanted the policies that the legislature just passed. But we know that very few voters have detailed policy positions on a large range of issues. It’s likely that some voters supported Democrats because of just one policy position — say, abortion rights — and don’t care much about the rest of the agenda; indeed, they may actively oppose Democratic positions in some areas.

Some might have supported Democrats because they always vote for Democrats. Other may have been motivated primarily by dislike of local Republicans or antipathy toward former President Donald Trump. Majoritarian procedures allow parties to pass whatever they can internally agree on, not what majorities of citizens necessarily want.

So is a system with the filibuster better because it prevents pure majority-party rule? Not necessarily. To begin, no U.S. state has a simple majority-party-rules system, since all legislation must pass two chambers (except in unicameral Nebraska) and get the governor’s signature; or a supermajority to override a veto. On the national level, the U.S. constitutional system makes it difficult for any party to control both Congress and the White House, partly because staggered terms mean that the full government is never on the ballot at the same time. Even in an era of strong partisan voting, we have had divided government in Washington, D.C., far more often than not over the last half century.

The filibuster as it is now conceived wasn’t part of the Constitution. Nor was it designed by anyone; it evolved over time into the 60-vote requirement as a means of putting a brake on majority-party rule. It also is rooted in bigotry; the filibuster’s primary use for decades was to defend Jim Crow laws and prevent anything close to full citizenship for millions of Americans even when majorities favored civil rights and voting rights legislation. My guess is that once it is gone no one will ever seriously propose to revive it.

But it does seem to me that something like the filibuster that evolved in the 1970s, used against major legislation but not all bills, was a reasonable compromise between majority party rule and full minority party obstruction. It was hardly perfect, and it ultimately proved unstable in an era of partisan polarization. The temptation to use it against more and more bills, and eventually every bill and every amendment, was too strong for the minority party to resist.

The filibuster allowed those in the minority to force majorities to bargain and compromise, enabling senators from both parties to participate in governing and to represent the interests of their constituents. Overall, that’s a good thing. When the Senate eventually joins the House in strict majority-party rule, something important will be lost.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.

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