The filibuster is a Senate tactic where one or more Senators block legislation through “unlimited debate.” They do not yield their time and effectively kill the legislation by not letting it advance to a vote. It’s, in essence, talking a bill to death. The only way to prevent this obstruction is to end debate through a procedure known as “cloture,” which requires a three-fifths majority (currently 60 votes) — a virtual impossibility in our modern political climate.
The filibuster is one reason that legislation with the support of a simple majority is rarely passed anymore, which has caused a fair amount of consternation on all sides of the political spectrum. A lot of ink has been spilled on why progressives and conservatives should abolish the filibuster, and as someone on the Left, I certainly see the appeal in some of these arguments more than others.
Yet not nearly enough effort has been placed into making the moderate case for abolishing the filibuster, which is a shame because moderates have just as much a reason to want this archaic procedure gone as anyone else. When you really dive into the nitty-gritty of how this procedure operates in the real world, it's hard not to view it as a barrier to efficient and responsible governance.
It Was An Accident
When we talk about the filibuster, there is this widely held misconception that it was an intentional product of the Founding Father’s grand plan. We see this sentiment, for example, reflected in an article David Shuster penned in 2005 for NBC News, writing:
“…[filibusters go] all the way back to our Founding Fathers. To break a log jam at the Constitutional Convention, their compromise was this: The House of Representatives would be the popular body representing the will of the people, while the Senate, as the deliberative body, would protect small states and minority views”
Yet, this assumption could not be further from the truth. The House of Representatives and the Senate used to have very similar procedures, including the House’s “previous question” motion, which currently allows a simple majority to end debate. This motion had been copied over from the British parliament, but American representatives at the time didn’t really use it to end debate like they do in the House today.
To simplify Senate procedure, Vice President Aaron Burr removed the previous question motion in 1805. People were not aware of the ramifications because the country was relatively new, and lawmakers were still experimenting with how the rules work. The previous question motion would not be used to terminate debate in the House until several years later in 1811 (and would only be added permanently to the rules in 1840). Still, by then, it was gone in the Senate, and there was no serious vehicle to replace it.
The door was open for any disgruntled lawmaker to disrupt proceedings. The first filibuster happened in 1837 when Whig Senators tried to stop Andrew Jackson's allies from erasing or “expunging” a resolution of censure against the President. The Whigs were ultimately unsuccessful in this endeavor, but the filibuster remained, popping up now and again from issues ranging from a charter for a national bank to civil rights legislation. Despite multiple attempts to reform it in the 19th century, the majority was never successful in passing it for the same reason as today — the minority threatened to filibuster it.
We probably would still have no cloture procedure whatsoever if it had not been framed as a “war measure” in 1917. After a group of Senators used the procedure to obstruct President Woodrow Wilson’s effort to arm merchant ships, the President demanded reform, labeling the obstructionists “a little group of willful men, representing no opinion but their own.” We were in the midst of World War 1, and the public was enraged that a few Senators could block a measure framed as vital to the country's safety.
Even with widespread support, negotiations to curb the filibuster's influence were difficult because the filibuster acted as the ultimate bargaining chip. Since one Republican Senator supported a supermajority to enact cloture, the Senate ended up adopting a high two-thirds majority in March of 1917, so they could get assurances from Senators in the opposition not to block the proposal. The filibuster would later be amended again in 1975 to three-fifths (where it currently sits today), but support for bringing it down to a simple majority like in the House have always stalled: the minority enjoys the luxury of being able to nuke popular legislation too much.
In the last century, we have seen the filibuster be used as a radical tool of obstructionism. The Senate's political minority has adopted it to prevent votes on anti-lynching legislation (something that has still not been passed), civil rights legislation, and legislation meant to block workplace discrimination. To this day, the record for the longest filibuster goes to segregationist Strom Thurmond of South Carolina in his attempt to block the Civil Rights Act of 1957. In the words of David Litt for The Atlantic:
“Today, the filibuster continues to hold back progress on civil rights. Because the chamber’s two-senators-per-state structure favors smaller-population rural states, disproportionately white states have disproportionate power in the Senate.”
Many moderates have claimed that the filibuster engenders pragmatic discussion, but it has acted more as a regressive tool than one of reasoned debate. There is nothing pragmatic about preserving what effectively is a glorified typo that has prevented over a century of sound legislation.
Kills Genuine Compromise
Even knowing this history, people's instinctual argument in favor of the filibuster is to ask what happens when “your side” loses. If Republicans or Democrats win office in the next election cycle, won’t that make “your side” vulnerable to undesirable legislation? It’s all well and good to press your political advantage when you have it, but the situation becomes dicer admittedly when you are in the minority. As Aaron Blake writes in The Washington Post:
“The 2022 elections also loom large: They could well install Republicans back in control of the Senate and the House. Midterms are generally very tough on a president’s party, and Republicans need only the most modest of gains to take back both chambers.”
However, the whole point of being a moderate is that you allegedly do not fall prey to tribalism on either the left or the right. Moderates are supposed to weigh the merits on all sides of the ideological spectrum and advocate for commonsense initiatives that make sense both politically and financially. They claim to want a substantive debate, something the filibuster fails to provide at nearly every turn.
Think about what the filibuster practically means. Regardless of how radical or self-serving a Senator’s viewpoints are, that one person can delay the proceedings for the entire chamber. For example, Senator Huey Long infamously filibustered for over 15 hours, where he read the constitution, lambasted colleagues, and gave out his recipe for fried oysters. Although he was trying to ensure Senate confirmation remained for some New Deal employees, his protest's main objective was to prevent political enemies in Louisiana from obtaining those jobs. Huey Long was able to take advantage of this archaic practice to temporarily halt negotiations from happening just to spite a political rival.
This history is not ancillary to the filibuster but ties directly into what the word means. The word filibuster's entomology has origins to the buccaneers of the 17th century, most likely the Dutch word vrijbuiter or freebooter. This word was adapted into French (“flibustier”), Spanish (“filibustero”), and eventually English. It’s not hard to see how a metaphorical throughline can be traced between men stealing gold on the open waters and the men hijacking a government's political proceedings.
Filibustering was not a term of pride crafted by the Founding Fathers but a pejorative. We gain nothing pretending otherwise. Many moderates claim to have a desire to incorporate the thoughts and views of both the minority and majority into legislation via compromise, and yet letting one actor consistently stall negotiations entirely is not how proper debate should work. The filibuster prevents genuine compromise from happening because it lets more fringe positions control our entire political conversation.
For better or worse, most of this country prescribes to policies that are closer to the political center, and their leaders reflect those preferences. The Democratic party is not filled with a legion of Bernie Sanders lookalikes waiting to implement singer payer healthcare. It’s composed of conservative Democrats like Joe Manchin, Dianne Feinstein, and Kyrsten Sinema. Moderates should want a political system that reflects the world those leaders would build. There are plenty of Senate Democrats who would be more than willing to come together with Senate Republicans to pass policy. “They know we all have to work together,” remarked Joe Manchin of the Republican Party to NBC News.
However, that ideal remains out of reach if Congress continues to let opportunistic people preside over a tyranny of the minority.
Another core problem with the filibuster is that it encourages large, unwieldy legislation. Since it mandates that you need a supermajority to squash any dissent at any time, our leaders often scramble to dump everything into the one or two bills that have a chance of actually getting passed.
These pieces of legislation are called “Omnibus” bills (they can also be broken up into several smaller ones referred to as “minibus” bills). These are appropriation bills that only require a single vote to pass the floor, but they wrap hundreds of measures together into a single package. Omnibus bills have become a necessity in an age where the threat of filibuster is the defacto tool of negotiation. The need to enact cloture (the procedure used to end a filibuster) has gone from something that occurs several times a congressional term to over one hundred. Less substantive legislation is making it through the pipeline, which means omnibus bills tend to get very long and enigmatic.
For example, the 2019 minibus bills totaled over 2,300 pages and were passed while many Americans were on Christmas break. Most legislators did not fully comprehend the substance of the laws they had passed. The sheer scope of these bills was too much to process, and these bills were not a one-off experience in Congress. The appropriations process has created a situation where legislators routinely remark on their inability to debate (or even read) everything within an omnibus bill. “How fast can you read? Can you read 2,232 pages in only 18 hours?” begins an article in GovTrack, “If you can’t, then you’re like most members of Congress and nearly every other human being.”
Furthermore, since these are laws spearheaded by the majority party, the minority routinely has little influence on their overall direction, especially when the President and the Senate belong to the same party. The negotiation becomes one between whoever controls a filibuster-proof majority and the President, with their power to veto legislation. As the Center for Effective Government remarked on the omnibus negations for the 2004 Congressional Term:
“…the minority party has not been privy to the discussions of compromise for the omnibus bill. In fact, balance of power has shifted to the executive branch, leaving compromises between the President and his party.”
This lack of accountability creates a situation where the public is routinely oblivious to the details of Congress’s most important legislation until well after the fact (if ever), which creates an environment ripe for abuse. Omnibus bills are routinely criticized as legislation having too much pork (i.e., earmarks that benefit special interests or donors in a congressperson’s districts). In between the 2017 and 2019 Congressional terms, the group OpenTheBooks, an admittedly conservative organization, reported hundreds of millions of dollars going to Fortune 100 companies such as General Electric, Boeing Corp, and United Technologies. The Ivy Leagues similarly received over $9 billion in federal grants during this time.
While some of this money is being allocated for the common good, the lack of transparency in the omnibus process makes it very difficult to assess where that good starts and the corruption ends. The byzantine nature of appropriations is the perfect target for lobbyists, who are infamous for killing reforms in between the lines of an appropriation bill few will ever fully read. During the 2019 appropriation omnibus, for example, the health care industry successfully killed an attempt to curtail “surprise” medical bills — something it’s doubt the public would have agreed with if the issue had been debated in the public eye.
A common talking point we hear from moderates is that they want more straightforward, realistic leadership. “Pragmatism has never been more urgently needed in American politics,” writes David Von Drehle in the Washington Post. Efficiency is certainly a noble goal, but one not possible when the filibuster acts as a cover for disingenuous legislation.
Lastly, the filibuster encourages politicians to back legislation they don’t genuinely support. The barrier for a law’s passage is so high that most politicians can vote on a bill they know will ultimately not pass in the Senate to signal to their constituents that they support an issue, even when they don’t really believe in it.
The debate over Medicare for All or single-payer in the Democratic Party is a perfect example of this fact. When Bernie Sanders unveiled a proposal for this policy in September of 2017 (and again in 2019), it received wide support from many members within his party, ranging from then-Senator Kamala Harris to Kristen Gillibrand to Cory Booker. The bill didn’t go anywhere, though. Republicans controlled the Senate, and it failed to pass committee, let alone go to the floor for a vote where Majority Leader Mitch McConnell would have blocked it.
However, when these three Senators ran for president during the 2020 election cycle, they seemed to backtrack their support. Candidates such as Kamala Harris and Corry Booker became more resistant to the idea of eliminating private insurance in favor of our government financing healthcare. “I stand by supporting Medicare for All,” he remarked in an interview, “But I’m also that pragmatist that when I’m chief executive of the country … I’m going to find the immediate things that we can do.”
Now that Democrats control a slim majority in the Senate, these leaders are once again hesitant to push for single-payer. As Cory Booker recently told Edward-Isaac Dovere in The Atlantic: “I applaud Obama for doing health care and saving the economy, but a lot of Americans felt that that was them losing their autonomy over their health care and a big Wall Street bailout. Then we got demolished in the midterms.” It seems strange to advocate for an issue when it had no chance of passing in the Senate, only to backtrack when you are politically closer to that goal. It makes it seem as though Booker’s cosponsorship didn’t mean anything politically, only optically.
While the Republicans did not threaten to filibuster Bernie's bill in 2017 and 2019 because they were in the majority at the time, the tactic still plays a huge role in this culture of performativity. Many Democrats are well aware that the filibuster’s preservation means certain issues will never make it to the floor. Even if Democrats had had a majority in 2017, Republicans would have never allowed a vote on it. This reality means that many Democrats could signal their support of single-payer on a vote they ultimately disagreed with and let Republican obstructionism “tie their hands.”
Republicans employ this tactic as well. Democrats filibustered a series of policy initiatives during the second half of Trump’s presidency, including funding for the infamous border wall. Democrats blocked a Pentagon funding bill that would have financed it in 2019. As McConnell lamented shortly after the bill was blocked: “…over the past week and a half, we’ve seen our Democratic colleagues suggest that they may try to shoehorn their long-standing disagreements with President Trump into this appropriation process.”
If then-Majority Leader Mitch McConnell seriously believed in border wall funding, though, he would have either amended the filibuster (e.g., what Republicans did for Neil M. Gorsuch’s Supreme Court appointment in 2017) or used a procedure known as budget reconciliation (e.g., what Republicans did to pass the 2017 Trump Tax Cuts) to bypass the filibuster. He knew that that bill had no chance of succeeding on the floor — a fact even someone with a passing understanding of Senate procedures was well aware of. In the words of columnist Marc A. Thiessen for The Washington Post:
“More often than not, the majority doesn’t even bring up legislation that does not have 60 votes needed to cut off debate. Just the threat of a Democratic filibuster stopped Republicans from moving forward on a host of priorities.”
Instead, McConnell let a vote he knew would be filibustered into oblivion go to the floor for the very reason that it would die. He wanted to tell his constituents to “blame the Democrats” for Trump’s chief campaign promise failing to pass.
As we can see, the filibuster provides these parties political cover. It lets both parties pin the other side as “the bad guy” so they can continue business as usual. Many moderates claim to value honesty and pragmatism. “Honesty [is] always the best policy,” writes the Modern Moderate blog. “America has been served best by leaders who tell the truth.”
And so, it seems strange that so many moderates would cling to an idea that ultimately encourages mendacious leadership.
The filibuster was a procedural accident made more or less 200 years ago. We have been unable to remove it because it entrenches the political minority with the ability to obstruct reasoned debate and compromise. Leaders on all sides of the political spectrum have been attempting to undo this loophole almost since its inception. Yet, the mistake has persisted so long we now falsely assume that it's an integral part of this country's political fabric.
The moderates I have met in my day-to-day life claim to care about political ideals such as reasoned debate, integrity, and efficiency. I have seen moderates lecture about the need for this country to come together and support bipartisan legislation.
And yet paradoxically, many moderates are defending the preservation of the filibuster — a tactic that accomplishes the exact opposite of all of these principles. A filibuster is an act of obstructionism. It obfuscates the political process so much so that it increases corruption and the mendacity of our leaders. We gain nothing from defending it.
Be the types of people you claim to be — abolish the filibuster — and let Congress govern again.