Democrat politicians have been clamoring for the Senate to eliminate the Filibuster, the rule that effectively prevents major legislation to pass the upper chamber without 60 votes. Democrats have been exasperated that this rule prevents major legislation to get passed, even if they have the majority on the Senate. Senator Elizabeth Warren (D-MA) best expressed their argument when she said the filibuster is a “procedural loophole” that allows for a “extreme minority of senators” to block bills that are heavily supported by the people.
To be fair, there are some valid criticisms on the way the filibuster is being currently used. Progressive political journalist Ezra Klein wrote a thorough article in Vox explaining the reasons Democrats use to oppose the filibuster, the main idea being that the rule prevents effective governance and prevents anything to get done. Klein argues that getting rid of the filibuster would improve government efficiency, providing needed policy solutions to the issues facing the nation.
However, even if arguments against the filibuster are made in good faith, they will not help the country to regain a sense of civility and consensus. It would only make it worst.
We all know America is terribly divided. Political divisions run so deep that Americans do not even agree on what are the main problems the country faces, with a Pew Research Center survey showing that Democrats and Republicans have very different views on what are the most pressing issues we must solve, we don’t even agree in what are the problems we have. If we turn the Senate into the House of Representatives, we take away all political incentives into finding common ground in policymaking.
Filibusters are a tool for both gridlock and consensus
Filibusters are not mandated in the Constitution, it is a procedural rule that emerged organically throughout time. According to the official website of the Senate, senators started using long speeches to avoid votes in legislation from the very first congressional session in 1789, with regulations about how to end those procedures (cloture) developing throughout the years until in 1975 the Senate determined that a 2/3 vote was needed to end debate and pursue with a final vote.
Although filibusters have existed for a long time, it is true that their use has increased substantially over the last decades. According to the Senate’s official count, the number of clotures votes and invocation has increased substantially since the 1990’s, with 2019-2020 seeing 298 votes on cloture. Which is one of the main reasons used by those who want to eliminate them from the Senate, as it is argued that it is a procedure used by a party in the minority to derail the legislative system.
Do filibusters make the lawmaking process harder and cumbersome? Yes, but the very structure of the American system of government is designed to be like that. If America wanted to have a system of government that was swift and decisive, it would have adopted a Westminster style parliamentary democracy where a government not only can pass laws easily but is also part of the Legislative. The Founders chose not to.
Instead, we have a system where the House, the Senate, and the President need to constantly work together to achieve significant legislation, it requires consensus and bridge-building. The filibuster is just an additional measure to avoid a scenario where slim majorities pass massive legislation without at least tacit agreement from the other side.
Sure, you can pass some bills without 60 votes (like the COVID relief bill) but you need more support for more substantive and long-lasting change. Which is vital in the American system where political change is perennial -with elections every two years- as an incredibly partisan bill can be rapidly undone as soon as the other party assumes power in the next election cycle. A world where the US is perpetually writing and repealing significant laws is not good for governance.
The UK and other parliamentarian systems can give themselves the luxury of passing a partisan bill, since their terms are usually longer than the two-year renewal cycle Congress faces. In the U.S this is impossible, the state of constant campaigning in Congress makes it easy to run for office with the promise of repudiating unpopular laws, not letting its effects to be felt by the population before it was repealed.
Furthermore, it would take away any incentive on building a bipartisan consensus on a legislative project. After all, why to engage with Democrats or Republicans in any significant bill if we could just wait two years and hope the tide turns.
Filibusters do create gridlocks, but those gridlocks are only a symptom of a larger disease that affects all Americans, which is hyperpolarization. After all, during most of the 20th century, clotures votes and invocations were in the single digits. Filibusters are a tool for both gridlock and cooperation, the problem is the user, not the tool itself.
Furthermore, is not impossible to have some significant legislation passed with bipartisan support, the first two COVID relief bills in 2020 were approved by Democrats and Republicans alike. Passing some bipartisan legislation is becoming harder, but is not necessarily a pipe dream.
No filibuster would lead to more polarization
Today’s political rhetoric is filled with exaggerations and demonizations: If Republicans win, the country would become a white-supremacist, authoritarian, plutocratic dystopia, if Democrats win, then the stalinist gulags would start opening in short notice. Well, imagine how pervasive that rhetoric would become if we eliminate the filibuster and the stakes for every election became higher.
Today, a side needs to win 60 senators and the House in order to pass sweeping, polarizing legislation. Meaning the minority party would still feel safe that it had the tools to contest any brazen move by the other party. In a new post-filibuster world, voters would see every single election as an existential threat, a do-or-die attempt to prevent the other side to implement its nefarious policies. The republic cannot survive such an ordeal, it is barely surviving polarization today with the filibuster in place.
In a country where we are growing divided and bipartisanship is a rare gem, is it wise to eliminate one of the few checks that forces political parties to at least consider the other side?
Also, have Democrats considered what would happen if Republicans win both houses and the White House without the filibuster in place? Well, the deeply polarizing confirmation votes of Supreme Justices Gorsuch, Kavanaugh, and ACB should give them a glimpse. Imagine what type of drastic legislation Trump would have implemented if Democrats did not have the Filibuster in 2017 and 2018.
Is understandable that many people can be frustrated with the dysfunctional nature of the current american political system, it is fair to say that everyone is. However, eliminating the filibuster does not address the underlying cause, it only solves one symptom while worsening the disease.
As Senator Minority Leader Mitch McConnell (R-KY) said, eliminating the filibuster would only create a “completely scorched-earth Senate” and like a “100 car pileup, (with) nothing moving” McConnell is right, eliminating the filibuster will condemn us to an eternal war of attrition in a system that is just not designed for hyper-partisanship.