The filibuster is failing us

There is a tremendous amount of romance associated with the filibuster. Many fans of old movies recall scenes such as those in Mr. Smith Goes to Washington where Jimmy Stewart’s character (an unlikely appointee meant to go along) takes the floor and refuses to yield it as he attempts to protect a boy’s camp from rapacious developers. The dashing and earnest young senator carries on to the point of exhaustion and finally collapses when he can no longer continue his one-man crusade. One of his tormentors, stricken by conscience, confesses the wrong he and others conspired to commit and vindicates his courageous and sincere colleague.

For the most part, filibusters are disappointing affairs compared to the one depicted so dramatically in Frank Capra’s film.

What’s the less sensationalized view of the thing? We begin by considering the difference between the House of Representatives and the Senate. The United States government takes the ancient advice to mix the different types of regimes so as to achieve stability. Therefore, we have a president who is like a monarch, a senate like an aristocracy, and a house like a democracy. All are elected on different cycles. The president is elected every four years. The Senate only exposes 1/3 of its members every two years. They serve six-year terms. Members of the house only have two years and must face the people more often than anyone else.

It is expected that the House will respond the most to popular feeling and will reflect the mood of the voters in an extremely current way. The entire House could theoretically turn over in a single election. Our Constitution counters the potentially rash movements and feelings of the house and voters by putting in place a much more deliberate Senate. Senators were originally not even popularly elected but were chosen by state legislatures. The idea was that the House and Senate would be like a cup of coffee and a saucer. The hot coffee from the House could be poured into the saucer of the Senate to cool. Popular passion would be restrained by reason and reflection.

The filibuster, which is not found in the Constitution but is instead a Senate rule, fits with this description of the Senate as a cooling agent. With the filibuster, one senator can arrest the attention of the body and slow down the proceedings. While speaking to exhaustion, a senator might argue a case or just create more time for others to consider the merits of legislation.

I’ve made the case for the upside of the filibuster. It can slow things down, give time for an appeal to conscience, and draw attention to a cause. Of course, one would be remiss not to note that the filibuster was utilized by those seeking to preserve segregation.

In the case of the shutdown we’ve just endured, there’s a new angle that may finally lead us to abandon the Senate rule. The Democrats went beyond not voting to fund the government, which was their right but instead refused to allow the Republicans to use their majority to fund the government. They accomplished this goal by invoking the threat of the filibuster, which meant it would take 60 votes to end debate. The Republicans had a majority, but not 60. The result was a 43-day shutdown. Now that it is finally over, voters are considerably worse off than they were at the beginning. We endured 43 days of lost services but will stay pay every employee who did nothing during that time. In addition, we can’t get back the cancelled or delayed flights that resulted.

It is important to understand that the Democrats used the filibuster rule to accomplish an illegitimate goal. They sought to force the majority party to pass legislation the minority could not otherwise obtain by simply deadlocking government. It should be obvious that if Senate minorities persistently adopt this tactic, the result will be perverse, as minorities will paralyze operations as they try to force passage of their legislative agenda. To do so would be to set the logic of legislatures on its head as majorities are repeatedly made a helpless victim by the party out of power.

I would argue that it is time to abandon the filibuster. It is not required by the Constitution and has been badly abused by the lack of any requirement that the threat of the filibuster actually be carried out. Instead of accomplishing the goal of greater deliberation, it has turned into an occasion of hostage-taking with various negotiators working behind the scenes to get the government released.

But if we don’t, we need to recapture the spirit of the thing. No more threats to filibuster triggering the cloture requirement. Senators should have to deliver the real thing—speaking on the floor of the Senate for hours and hours—and see if they can pull off a 43-day shutdown that way.

For a counterpoint by Albert Mohler, see “Keep the filibuster rule.”