In October, I wrote about the tradition of the filibuster in the U.S. Senate, and how it’s made effective governing in Washington nearly impossible. The concept of the filibuster used to mean that a senator could bring all Senate work to a complete halt by holding the floor and “debating” – actually, reading old speeches, recipes, children’s books, or anything else to prevent a bill from moving forward. To end this “debate,” the Senate must pass “cloture,” which under current Senate rules requires 60 votes to stop the filibustering.
These days, filibustering doesn’t even require a senator to actually stand and talk endlessly. Any senator can simply indicate that they would filibuster a bill and that’s a sufficient threat to gum things up. Part of the reason that works is that the Senate now runs bills through the chamber on multiple “tracks,” scheduled throughout the legislative day, and if one of those is held up by a filibuster threat, the rest of the chamber’s work can continue. This means the risk of seeming to be obstructionist is much lower, and in recent years it effectively has turned the Senate into a political body that requires a super-majority of 60 votes for nearly everything it does.
This is defended, even by centrist Democrats like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, as a way to protect the rights of the minority in the Senate. Which might be a laudable position (and understandable if you’re concerned you might end up in the minority again, a likely proposition) if the super-majority requirement didn’t also effectively destroy the rights of the Senate majority.
The authors of the U.S. Constitution didn’t include super-majority requirements for passing legislation, and only had a few specific exceptions, including conviction of an impeachment charge (2/3 of the Senate), expulsion of senators or representatives from their seats (2/3 of the appropriate house), ratifying treaties (2/3 of the Senate), proposing amendments to the Constitution (2/3 of both houses), and overriding a presidential veto (also 2/3 of both houses). Other than that, majority rule in both houses was anticipated, a fact underlined by comments by James Madison, the primary author of the Constitution:
“It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”
James Madison, Federalist Paper No. 58
So those who defend the filibuster on the vacuous reason of respecting the minority are, in fact, disrespecting the duly-elected majority. And nothing gets done.
If Democrats are unable to move significant legislation through both houses of Congress and to the president’s desk in the next two years, they will lose control of one or both houses. Republicans will be able to point at their inability to act, and they’ll be right. The time has come for bold action on the filibuster; if not eliminating it altogether, at least modifying it to require that those filibustering a bill actually hold the floor (and stopping all Senate business altogether while doing so), or perhaps reducing the number of votes required for cloture depending on how long the filibuster has gone on (60 for the first three hours, 58 for the next three, and so on).
Democrats have the majority today. They should start acting like it.