Jul 24, 2018

Why The Filibuster Needs Reform

At a time where inflexible partisanship is soaring, there is a need more than ever for a bipartisan discussion on congressional reforms.

The filibuster is often cited as one of the reasons nothing gets done in Washington.  When overused, it can contribute to legislative gridlock but it is also an important tool that protects the rights of the minority to be heard.

Only possible in the Senate, they are essentially acts of delaying or blocking legislation to ensure all views are heard and understood. It takes at least 60 votes (rather than a simple majority of 51 votes in the 100-person chamber) to avoid filibusters and pass most legislation.  What is lesser understood is that there are options short of entirely eliminating the filibuster that can help ease the logjams, without jeopardizing the unique and important role that they serve.

In short, as illuminated in Federalist #62, the intention of the Founding Fathers was that senators would (or at least, should) be less subject to the “infection of violent passions, or to the danger of combining in pursuit of unjust measures.”  Put another way, the role of the Senate, in contrast to the majority-ruled House, is a balance between accommodation of the minority and the primacy of the majority.

In that light, the option of using the filibuster – which is available to either party – reflects the Senate’s tradition of commitment to compromise and statesmanship among the chamber’s majority and minority parties.  So, encouraging compromise, coalitions, and bipartisan support for legislation is the foundational purpose behind the concept of the 60-vote threshold to halt a filibuster.

The Bipartisan Policy Center’s Commission on Political Reform found that while the filibuster is an important feature of the Senate, it should be used “sparingly.”  Whether one agrees or not often depends on if he or she sides with the majority party at the time.  Further, while designed to protect the minority, many argue that it gives small states out-sized control in the Senate given that they represent a smaller portion of the U.S. population.

Fortunately, the functionality of the Senate can be improved without fully pulling the plug on the filibuster.  Here are three such reform options:

  1. Eliminate filibusters on motions to proceed to debate on legislation. Currently, Senators can filibuster (block) even the procedural vote to allow a bill to be considered on the Senate floor. This recommendation would remove that option.
  2. In exchange for giving up the right to block bills from going to the floor, require that each side be able to offer at least ten relevant amendments, alternating between the minority and majority parties. This recommendation would address the concern that, in recent years, members of the Senate minority often don’t wish to proceed to legislation because they frequently lack the opportunity to offer any amendments once legislation is brought to the floor.
  3. Require, on a selected basis, “live filibusters.” In the past, filibusters were often achieved with a Senator speaking for a very extended length of time on the Senate floor without interruption (think of the movie classic “Mr. Smith Goes to Washington”).  In recent times, most often the minority party simply threatens a filibuster, which then triggers the 60-vote threshold vote to move to voting on a bill.  Live filibusters on a constant basis would likely paralyze the institution but requiring Senators to engage in a live filibuster on occasion could incentivize Senators to instead either avoid filibustering altogether or work together toward compromise.

The bottom line is, reforms are necessary.  They should also be the right kind of reforms, that allow for the institution to function more effectively while maintaining its capacity to fulfill our founders’ vision and encourage constructive consensus-building.

Need a refresher on what the filibuster is? Here’s an explainer.

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