The Left and the Left Out: Analyzing the filibuster as an American oddity
The United States Senate is “the only legislative body in the world which requires a supermajority for ordinary business.” But it was never meant to be. The framers of the U.S. Constitution intended for supermajorities to be used for only four types of votes: convicting impeached officials, overriding presidential vetoes, ratifying treaties and enacting constitutional amendments. The framers’ reasoning was that these four types of votes were highly consequential and therefore could not be left to the whims of a simple majority. Although they could have chosen to extend the supermajority case to other votes, they chose not to do so.
In the U.S. Senate, the smallest simple majority can be obtained with the votes of 50 senators, plus the tie-breaking vote of the vice president. Such is the case for Democrats in the current Senate, which is split 50/50 and is presided over by Democratic Vice President Kamala Harris. In any other democracy in the world, a simple majority would suffice for most if not all of a presidential platform to be passed into law. But not in the U.S.
This is because in 1806, the Senate eliminated a procedural rule that automatically cut off floor debate. This resulted from a recommendation Aaron Burr (who is perhaps most remembered for killing Alexander Hamilton in a duel) gave the Senate in 1805. Burr believed this procedural rule was redundant. In practice, however, dropping this rule made it so that any debate on any issue could be extended indefinitely.
A filibuster occurs when a senator or group of senators “prolong” debate on a bill, resolution, amendment or another debatable issue. It is used by minority actors to delay or prevent said measure from coming to a vote. Before 1917, the Senate rules did not provide any means to curtail a filibuster. However, in that year, the Senate adopted “cloture,” a rule that forced an issue to come to a vote if two-thirds of the senators (67) voted for it to do so. In 1975, the number of votes required for cloture was reduced to three-fifths of the senators (60).
Although utilizing a filibuster for routine legislation is an oddity of American democracy, the conventional view of American political orthodoxy is that it is ultimately a good thing. The orthodox view is that the filibuster provides “a brake on hasty lawmaking that encourages bipartisanship,” and that its removal would lead to a “see-saw” of policymaking that would allow both parties to pass considerable legislation to further their agenda and undo the other side’s every two to four years.
However, this orthodox view overlooks some key insights.
In providing a “brake” that restricts the Senate’s ability to pass new laws, the filibuster effectively restricts the power of the legislative branch. The framers of the Constitution intended to create a system of checks and balances between three “co-equal” branches. If the legislative branch does not agree with the judicial interpretation of existing laws or the executive enforcement and execution of said laws, they could simply create new ones. This ability is largely curtailed if legislators have a limited ability to create new laws.
Additionally, the idea that a filibuster “encourages” bipartisanship might be a fallacy in today’s highly politicized environment. While moderate Republicans and Democrats might be persuaded to vote for a bill from the other side, there are not enough of said moderate senators to reach the 60 vote threshold. Bills are more often centered around the core base of both parties, not their moderate legs. The supermajority required for bills to pass in the Senate therefore silences moderate voices more often than it gives them power. Only one bill in the past decade has passed with a bipartisan, filibuster proof majority in the Senate — an emergency coronavirus bill passed under the Trump administration.
Not only might the removal of the filibuster give more power to senators who are willing to reach across the aisle, but it could also alter the composition of the Senate into a more moderate one and reduce the bi-polarity of the Washington political environment. The filibuster’s existence allows senators to campaign on highly polemic and divisive issues with full knowledge they will never be held accountable for voting on such matters given that the filibuster will never allow any such legislation to pass.
Other democracies “tolerate” the “see-saw” effect of removing the filibuster. This includes many democracies ranked healthier than the U.S.’s democracy. The U.S.’ founding fathers did not intend for a filibuster to restrict the creation of new legislation. In the words of Hamilton, on giving power to the minority, “its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the… artifices of an insignificant…junto, to the regular deliberations and decisions of a respectable majority. … The public business must, in some way or another, go forward.”
American democracy finds itself at a stand still. In recent years, the filibuster has been wielded to prevent gun reform agreed upon by 54 senators. Its use is also currently threatening to prevent the passage of a measure that would impose federal voting standards, end partisan gerrymandering and ask presidential candidates to disclose their tax returns.
Scrapping the filibuster offers a potential way forward to not only make the U.S. a democracy that is more closely aligned with the visions of the founding fathers but also a healthier one.
Javier Calleja Erdmann is a junior writing about politics. His column, “The Left and the Left Out,” usually runs every other Wednesday.