Bloomberg Law
Feb. 22, 2021, 9:01 AM

Why the Senate Should Abolish the Filibuster

Tonja Jacobi
Tonja Jacobi
Northwestern University Pritzker School of Law

The Senate just showed what Democrats can achieve with their new control of the House, the Senate, and the presidency. The Senate approved a measure Feb. 5 that will allow Democrats to pass a $1.9 trillion Covid-19 relief plan without a single Republican vote. Every Republican senator voted against the measure. Vice President Kamala Harris (D) cast the deciding vote in the 50-50 split Senate.

There is much more for Democrats to do. Voting rights protection, an effective vaccine rollout, criminal justice reform, and presidential ethics and accountability reforms should all be on the agenda. But these programs, all of which have popular support, are being held hostage to an arbitrary rule of Senate procedure: the filibuster.

The filibuster requires a super-majority of 60 out of 100 Senators to pass any bill. Senate Democrats have the power to change this filibuster rule and they should.

If the filibuster continues, every progressive policy will become more difficult to enact and key small-d democratic reforms will be impossible because the filibuster gives the minority Republican Party a veto on most legislation.

Discussions of the filibuster may seem like technical, procedural debates only of interest to political scientists. But in fact, abolishing the filibuster is essential to getting anything done that is not budgetary in nature.

Those opposing filibuster reform tend use lofty rhetoric about the Madisonian ideal of counter-majoritarianism and the value of respecting Senate tradition. This is both offensive and misleading, however.

It is offensive because the main tradition of the filibuster was to prevent civil-rights protection for decades while African-Americans were being lynched for trying to exercise their basic civil rights. Still today, filibustering is used to oppose popular policy reform for the sake of allowing every senator to ensure their own state gets its pet projects and pork.

Not a Creation of the Founders

It is also misleading, as the filibuster does not come from the Founding Fathers. Unlike the rest of the separation-of-powers scheme, there is nothing in the U.S. Constitution that requires a super-majoritarian voting rule in Congress. In fact, the filibuster was a House invention, introduced in 1789 and abolished in 1841 because it made the House “the most unwieldy parliamentary body in the world.” Unending debate was only introduced to the Senate in 1856, and the 60-vote rule only came in the 1970s, after a two- third cutoff rule was introduced in 1917.

Some suggest reforming the filibuster, rather than abolishing it, but attempts to reform the filibuster have actually made the situation far worse. For instance, in 1972, a major reform was passed: To overcome obstructionism and a “do nothing” reputation, the Senate was allowed to go on with business while a filibuster was in progress. As a result, senators now do not even need to undertake the Herculean task of talking endlessly, they only need to threaten to do so. Consequently, filibustering is now entirely costless and thus routine.

Others say that the filibuster mitigates the problem of political polarization, but this is just not true: Polarization is empirically worse than ever. Reciprocity has been usurped by hypocrisy. Sen. Mitch McConnell (R-Ky.) cried foul in 2013, when Democrats, led by Sen. Harry Reid (D-Nev.), abolished the filibuster for executive appointments and judicial nominees other than for the U.S. Supreme Court. Then in 2017, McConnell abolished the filibuster as applied to Supreme Court nominees. There is no political compromise anymore, and the filibuster is not above partisan division—rather, it is the entrenchment of minority party obstructionism.

Reconciliation Process

There is one important workaround to the filibuster that enabled the Senate to pass the pandemic relief bill. The reconciliation process, a once obscure budgetary procedure, has created a mechanism of avoiding filibusters, but only on some topics.

Initially an attempt to restrain budget deficits by forcing all of the spending that congressional committees proposed throughout the year to “reconcile” with the budget committees’ initial targets, reconciliation is now the primary means by which significant controversial legislation is passed through the Senate. The Bush tax cuts, the Trump tax cuts, and much of Obamacare were passed as budget measures using reconciliation. This is because a reconciliation bill cannot be filibustered—it only needs a simple majority to pass.

Reconciliation will not enable Democrats to make the big structural changes needed to ensure that Russia cannot interfere with our elections again, to enfranchise the almost 4 million voters in D.C. and Puerto Rico, or even to provide basic and much-needed electoral protections in the face of Republican voter suppression. But the way reconciliation has been used shows just how much can be done when a bill cannot be filibustered.

Abolishing the filibuster requires every Democrat being on board, and Sen. Joe Manchin (D-W.Va.) has said he will oppose the reform. But Senate Democrats represent 41 million more American voters than their Republican counterparts, so pressure must be put on Manchin to enable democracy to work and for his party— which controls all of the popularly elected institutions of government—to govern effectively.

Aptly, the term filibuster is a word from the Spanish filibustero, meaning pirates. Just as the U.S. does not negotiate with terrorists, so it should not yield to the bullying of pirates, whose goal is to prevent progress and reform.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Tonja Jacobi is the Stanford Clinton Sr. and Zylpha Kilbride Clinton research professor of law at the Northwestern University Pritzker School of Law.