A Responsible Filibuster
The Senate is the quintessential institution of American national government. This is thanks in large part to the filibuster. Since the majority party rarely has the 60 members it would need to break a filibuster on its own, senators know that if they want to make policy, they must forge a coalition that transcends party lines. It is thus in the Senate, more than anywhere else in the federal government, that our leaders must focus on what unites us rather than what divides us.
Senators sometimes attribute the distinctive culture of their institution to the filibuster, noting that if it were ever abolished, the Senate would soon look much more like the House of Representatives than it does today. But there is far more at stake in preserving the filibuster than preventing the Senate from becoming a second iteration of the lower chamber.
The filibuster embodies the principle that a large, diverse society like the United States ought to be governed not through raw power plays and partisan combat, but by building consensus through persuasion and compromise. Since no legislation can be enacted without the Senate’s consent, senators’ commitment to this principle spills over into the broader constitutional system.
Unfortunately, the filibuster’s integrity has eroded over the past half-century. At various times, senators have carved out exemptions to the procedure, such as budget reconciliation and trade-promotion authority. In the 2010s, the Senate used the “nuclear option” to eliminate the filibuster for votes on the president’s executive and judicial nominations. Since then, we have witnessed repeated, insistent calls to abolish the filibuster altogether — primarily from Democrats, but occasionally from Republicans, too. If we want to preserve this crucial institution for future generations, we must think more clearly and speak more openly about the rights and responsibilities its use entails.
The filibuster is a creature of the Senate rules, which means it can be curtailed or eliminated at any time by a simple majority. Conventional wisdom suggests that the majority party respects the filibuster because it expects to someday become the minority party, but the facts don’t bear this out. A new understanding of who benefits from the filibuster and how will give us a better idea of what rights and responsibilities the minority party has in employing the filibuster to block legislation. To protect this essential practice, senators must come to grasp these duties.
WHOM DOES THE FILIBUSTER SERVE?
A common rationale used to explain why senators have maintained the filibuster is that it acts as an insurance policy. The majority party, so the argument goes, realizes that although it might chafe under the filibuster today, no majority lasts forever. And when the party inevitably falls on hard times and becomes the minority, its members will be glad they kept the filibuster in place.
The filibuster-as-insurance-policy hypothesis makes intuitive sense, but it doesn’t fit the facts. Members of Congress aren’t known for their willingness to incur short-term losses for long-term gains, so it becomes difficult to ascribe the filibuster’s survival to senators’ foresight. More tellingly, though, if this were the real reason why the majority kept the filibuster in place, we would expect the filibuster to be most secure when each party has a reasonable chance of taking the majority in the next election. Conversely, we would expect it to be least secure when a hegemonic party can be confident that it will remain the majority for the foreseeable future.
But this is exactly the opposite of what has occurred. The filibuster’s position has been most precarious in the years since 2005, when the Senate majority has oscillated frequently between Republicans and Democrats. In fact, when the Democratic majority used the nuclear option to exempt votes on most kinds of presidential nominations from the filibuster in 2013, Republicans seized the majority in the very next election.
For a more compelling explanation of the filibuster’s continued survival, we can look to the House of Representatives, which had its own version of supermajority rule during the 19th century. According to the Constitution, a majority of the members of the House must be present in order for the chamber to conduct business. But under House precedent before 1890, simply having a majority of members present in the chamber was not enough to establish a quorum: A majority also had to participate in the roll-call vote. With this rule in place, members of the minority party would frequently refuse to participate in the roll-call vote in order to deprive the House of the quorum necessary to move forward. This tactic was known as the “disappearing quorum.”
In theory, the majority party would have enough members to make a quorum on its own. But given the state of medicine, transportation, and telecommunications in the 19th century, there were frequently at least a few members of the majority party absent from the House who could not be easily summoned. In years where the majority had only a slim margin over the minority, it was quite difficult for the majority to make a quorum. If all members of the minority refused to participate in the roll-call vote when enough of the majority’s members were absent, they could deprive the House of a quorum and prevent the majority from conducting legislative business. The disappearing quorum thus acted as a de facto supermajority requirement for the House of Representatives, much like the Senate filibuster does today.
House Republicans eventually abolished the disappearing quorum in 1890, under the speakership of Thomas Reed. But the GOP had been the minority party as recently as 1889, and it would return to the minority shortly thereafter, in 1891. It’s hard to square the timing of these events with the notion that the majority keeps supermajority requirements around so that it can benefit from them when it becomes the minority. That this occurred in both the 21st-century Senate and the 19th-century House makes the insurance-policy theory of the filibuster hard to sustain.
Supermajority requirements do, however, benefit some members of the majority party; the subsequent history of the House illustrates as much. In the decades after Reed abolished the disappearing quorum, House Republicans began to turn on one another. For a time, the conservative wing of the party simply steamrolled the smaller progressive contingent. But eventually, the progressives grew so disaffected that they revolted, and Republicans lost the ability to function as a governing coalition.
It’s tough to ignore the parallels between those days and our own, when House Republicans seem to spend at least as much time fighting among themselves as they spend fighting Democrats. The cause is the same in both cases. When a two-party legislature operates by simple-majority rule, all the votes needed to pass a law can be found within the majority party. And members of the majority have more effective tools for influencing one another than they have for pressuring members of the minority. Whenever members of the majority disagree with one another on how far to push policy (as they often do), they can turn to cajoling, bribing, chastising, threatening, and, occasionally, literally shoving one another to get their way. They cannot do the same with regard to their opponents in the minority.
Thanks to the filibuster, this is not the case in the Senate. If the more extreme members of the majority party want to legislate, absent a supermajority, they can’t simply put pressure on the moderate members of their own party. Even if all the party’s moderates caved, their votes would not give the majority enough votes to exceed the 60-vote threshold required to end a filibuster. To overcome the filibuster, the more extreme members of the majority party also need to persuade enough moderates in the minority party to join their side. And they can’t bully minority-party members by dangling campaign funds in front of them or threatening to back a primary challenger. Their only option is to compromise — to develop a policy that will be acceptable to a sufficient number of senators from the minority party.
This is the genius of the filibuster in particular and supermajoritarian institutions in general: They take the pressure from extreme members of the majority party off majority-party moderates, who are quite susceptible to it, and deflect it onto moderate members of the minority party, who are nearly invulnerable to it.
To put it in concrete terms, when the Democrats have run the Senate in recent years, moderate Democrat Angus King benefitted from the filibuster because, without it, he would have far-left Democrat Elizabeth Warren breathing down his neck. Moderate Republican Shelley Moore Capito would be in the same position with respect to far-right Republican Ted Cruz when Republicans had the majority. The filibuster sends Warren after Capito when Democrats are in the majority and Cruz after King when Republicans are in the majority, which is a much more comfortable arrangement for Capito and King alike: It allows them to obtain more moderate policy outcomes without taking the blame for failing to go further on any given measure.
This arrangement is not without drawbacks, of course. At times, King will not be able to pass a bill he favors because he cannot convince Capito to vote for it, and Capito will run into the same problem with regard to King. The filibuster’s survival depends on the balance between its benefits and costs to these members: As long as enough majority-party moderates value the filibuster as a pressure-deflection mechanism more than they value the bills it prevents them from passing, the filibuster will endure. If the value of the lost bills starts to outweigh that of the deflected pressure, the filibuster will be in trouble.
What does this suggest the minority’s responsibilities are as it pertains to the filibuster? In a purely practical sense, if the minority party wishes to maintain the filibuster, it must keep the costs to majority-party moderates proportional to the benefits. In some contexts, this may not require much restraint; in others, it may require a great deal.
The trouble is that these costs and benefits are hard to quantify. It’s difficult to say just how badly majority-party moderates want to pass any given bill that the filibuster blocks, or just how much they fear open confrontation with the more extreme legislators in their party. If asked, they would have a strategic incentive to exaggerate their irritation with the blocked bills as well as their willingness to confront their party’s extremists.
For this reason, moderates and filibuster-friendly institutionalists in both parties must build a shared understanding of what counts as a legitimate use of the filibuster versus what constitutes an abuse. This is exactly how the Gang of 14 saved the filibuster in 2005: They sat down together and negotiated a mutual understanding of how the filibuster ought to be used with regard to presidential nominations.
Ideally, senators would once again come together to forge a broader and more durable understanding of the filibuster in order to preserve it. Such an understanding would have to be negotiated, of course, but we can sketch an outline of what it might look like. The premise of this understanding would be that senators must work together to find broadly acceptable, robust solutions to the problems facing the country. Sometimes, they won’t be able to find such solutions. But the outcome of their search should not depend solely on whether it would give one party an advantage in the next election, but whether the proposals on the table would improve the country relative to the status quo.
MINORITY RIGHTS UNDER THE FILIBUSTER
The filibuster’s most fundamental purpose is to prevent the majority party from entrenching itself at the public’s expense. Institutionalists and moderate members of both parties who wish to preserve this mechanism would do well to recognize two important scenarios in which a filibuster is justified.
First, the majority might try to legislate the minority into oblivion by rewriting the terms of political competition. It could do so by changing election and campaign-finance rules. It could admit new states into the Union. It could enact policies that would supercharge or hamstring key interest groups, such as public-employees unions for Democrats or churches for Republicans. While there might be perfectly legitimate policy reasons for taking these steps, whenever such a proposal promises to tilt the partisan scales too far in favor of one party or another, the minority is well within its right to filibuster. It is then incumbent on the majority party to either develop a compromise or to take the argument to the public and win a filibuster-proof supermajority in the next election.
Second, the majority might try to hold onto power by borrowing against the future. Deficit-financed spending programs and tax cuts have a built-in political advantage: Their beneficiaries can vote in the next election, while many of those who will ultimately have to pay for them cannot. Sometimes it is wise to borrow to meet the exigencies of a clear emergency or to invest in the future, but there must be checks against the natural tendency to exaggerate present dangers and minimize future harms. If the need to borrow large sums is so pressing, there should be a supermajority in favor of it. The minority party should insist that the majority prove it has such support by overcoming a filibuster.
Both of these applications of the filibuster serve the interests of the country. If one party is to achieve hegemony, it ought to be by unifying an overwhelming coalition of voters, as Democrats did in the 1930s and again in the 1960s, not by using the power of the state to make it harder for the other party to compete. Likewise, the public is better served in the long run if decisions about taxes and spending are based on a broadly shared or negotiated assessment of the country’s economic position rather than myopic efforts to turbo-charge the economy just before the next election.
Both applications also serve the interests of moderates in the majority party. Most of these moderates are in office because they have found a way to survive in difficult political terrain. Their power is predicated on the fact that their party cannot hope to win a majority without them. If their party passes laws that reshape the political landscape to gain new seats and guarantee their majority for many years to come, these moderate members would lose their pivotal role in Congress and the influence over policy that comes with it. They might face threats from members of their own party, who would feel emboldened to primary more moderate members and replace them with more ideologically extreme individuals. They would also stand to lose the filibuster’s pressure-deflection mechanism, thereby transferring the onus of saying no to spending increases and tax cuts from members of the minority party onto themselves.
The understanding that the minority may legitimately filibuster efforts to change the political terrain is largely consistent with current practice. For instance, when Republicans filibustered the John R. Lewis Voting Rights Advancement Act — which they argued would advance Democrats’ electoral interests at the expense of states’ sovereignty — senators Joe Manchin and Kyrsten Sinema (who were moderate members of the Democratic caucus) resisted pressure from their own party to jettison the filibuster, even though both said they supported the bill’s content.
The understanding that the minority may legitimately filibuster tax cuts and spending increases that would raise the national debt, however, does not align with current practice. Today, the Senate can bypass the filibuster through budget reconciliation, a legislative procedure that protects from the filibuster bills that bring taxes and spending in line with the annual budget resolution.
Reconciliation was designed to help Congress address persistent budget deficits, but it has often had the opposite effect. It is no accident that many of the policy decisions that increased the national debt in times of relative prosperity — the Bush and Trump tax cuts and Biden’s spending spree, to take just a few examples — were passed via reconciliation. By contrast, spending bills that responded to genuine economic emergencies, such as Barack Obama’s 2008 stimulus package and pandemic relief under President Donald Trump, were passed by bipartisan supermajorities without resorting to reconciliation. The Senate should review reconciliation procedures and consider whether the exemption from the filibuster is serving its intended purpose.
MINORITY RESPONSIBILITIES UNDER THE FILIBUSTER
Most filibusters block proposals that do not fall into either of these two categories. Usually, the majority and minority parties have sincere disagreements about which policies promote the country’s interests, and members of the minority use the filibuster to prevent the adoption of a proposal that its members believe would take the county in the wrong direction.
These more routine applications of the filibuster are consistent with its general purpose: to promote interparty bargaining, accommodation, and compromise. But in our era of narrow majorities, if any proposal that can muster a simple majority is to pass, it must be supported by some of the majority-party moderates on whom the filibuster’s survival depends. If the minority presses its rights too hard, the costs to those moderates may exceed the benefits, and they may decide they would be better off without the filibuster.
There is no definite rule to determine how much filibustering is too much, or when the minority should allow a bill that it could block to pass in the interest of saving the filibuster; it depends on the value majority-party moderates attach to the bill in question. Members of the minority can have a better sense of how thin the majority-party moderates’ patience has worn if the two sides have close social ties and a history of collaboration, but there is no way for them to know for sure. There are two simple principles, however, that if followed, would greatly reduce the chance the minority would go too far. Both are consistent with the interests of the country and the interests of moderates in the majority party.
First, just as the minority is entitled to use the filibuster to prevent the majority party from giving itself an unfair electoral advantage, it must refrain from doing so purely for its own electoral gain. Using the filibuster is appropriate when the minority genuinely believes the proposed policy would leave Americans worse off than the status quo. But the minority should not use the filibuster to deprive the majority of the advantages that come from solving the problems facing the American people — that is, for the express purpose of denying the majority party a “win,” in the parlance of political operatives. In other words, the minority must not filibuster a proposal that it would accept if it were the majority party. Any instance in which the minority filibusters a proposal that many of its members supported in a previous Congress should be subject to scrutiny for endangering the filibuster’s stability.
A well-intentioned senator could reasonably question whether this principle serves the interests of the country. Even if a senator likes a particular bill the majority wants to pass, he could justifiably fear that the political capital the majority would accrue from passing that bill would enable the majority to pursue more objectionable policies down the road. From that perspective, there is a trade-off between allowing the problem addressed by the original bill to fester (which is bad) and empowering the majority to pass odious legislation in the future (which is also bad). Of course, if members of both parties adopt this attitude, the problem will never be solved, so both would be better off if they can find a way to agree to refrain from this politically motivated stonewalling.
Fortunately, the filibuster provides the collateral that senators need to secure this agreement. Whatever the effect politically motivated stonewalling has on the national welfare, it is surely bad for majority-party moderates. After all, the minority is very likely trying to win their seats in the next election in order to become the majority during the following session. These moderates would not long suffer the filibuster if minority-party senators were using it for the express purpose of making it hard for them to get reelected. If the filibuster is to survive, the minority must refrain from such politically motivated uses.
The second minority responsibility under the filibuster is to engage constructively with the majority’s proposals. The minority should feel free to criticize a proposal from the majority for its shortcomings, but it should take an explicit stand on which elements of the proposal it likes and what the majority would need to change in order to gain its members’ support. The minority should offer its own solutions to the problems that animate the proposal. In short, it should bargain in good faith.
Fulfilling this obligation is obviously good for the country. Our constitutional system was designed to encourage this kind of bargaining. It also allows majority-party moderates to play the role they most covet: dealmaker.
A MORE RESPONSIBLE SENATE
Rules of thumb like these only offer general directional help, of course. Politics is complex, and senators have to make decisions under pressure that cannot answer to abstract guidelines. But having these rules in mind can nonetheless help moderate members of both parties think through their options at any given moment.
Surviving as a moderate in today’s competitive, polarized political environment is not easy. It requires moderate senators to work hard, to cope with constant anxiety about their political future, and at times to act contrary to principle in the name of political expediency. But moderate senators are also in a position to empathize with members of each party, which gives them a unique capacity to find compromises that will be acceptable to both sides. The rewards for playing this role well are often rich enough to encourage moderates to bear the burdens that come along with it, year after year.
The filibuster changes the terms of bargaining so that, instead of facing intense pressure from extremists of their own party, majority-party moderates can reach across the aisle to build bipartisan coalitions with members of the opposing party. But this only gets them halfway: They also need a minority party that is willing to engage with them. So long as it does, majority-party moderates will have every reason to believe they are better off with the filibuster than they would be without it. Only if majority-party moderates have that view can we hope to retain a crucial institution that drives Americans to find common ground with one another.
