If Joe Biden wins the White House, and Democrats take back the Senate, there is one decision that will loom over every other. It is a question that dominated no debates and received only glancing discussion across the campaign, and yet it is the master choice that will either unlock their agenda or ensure they fail to deliver on their promises.
That decision? Whether the requirement for passing a bill through the Senate should be 60 votes or 51 votes. Whether, in other words, to eliminate the modern filibuster, and make governance possible again.
Virtually everything Democrats have sworn to do — honoring John Lewis’s legacy by strengthening the right to vote, preserving the climate for future generations by decarbonizing America, ensuring no gun is sold without a background check, raising the minimum wage, implementing universal pre-K, ending dark money in politics, guaranteeing paid family leave, offering statehood to Washington, DC, and Puerto Rico, reinvigorating unions, passing the George Floyd Justice in Policing Act — hinges on this question.
If Democrats decide — and it is crucial to say that it would be a decision, a choice — to leave the 60-vote threshold in place, that entire agenda, and far more beyond it, is dead. All those primary debates, all those grand ideas on Joe Biden’s “vision” page, all those mailers and press releases and speeches and vows, will be revealed as promises they never meant to keep. All it takes to eliminate the filibuster, and to unlock that agenda, is 51 votes. All it takes to annihilate that agenda’s barest hope of passage is to do nothing. And doing nothing is always the easiest choice for politicians to make.
Over the years, I have spoken to dozens of Democratic senators who anguish over this decision. They recognize the filibuster has broken the modern Senate. But they also worry that eliminating it will worsen some of the pathologies, and represent an escalation in America’s partisan wars. They are caught between the responsibility they feel to the voters and the responsibility they feel to the institution. They are paralyzed between their commitment to their agenda and their fear of what Republicans might do if they retake power in a majoritarian Senate.
These fears are valid, these tensions real. The choice the Senate — and, thus, America — faces is simple: To keep the filibuster is to accept continued legislative paralysis, a Senate that acts not as the cooling saucer of the American political system but as the deep freezer of the legislative branch. To eliminate it is to court the whirlwind of governance — to accept that your opponents may win elections, to risk their agenda passing into law. Nightmares prowl both paths. But which do we fear more: being unable to govern, or being able to govern?
The debate over the filibuster is suffused with myth and misunderstanding, so a quick history is helpful. Originally, the filibuster was not even a rule. It was a mistake, a loophole opened by the absence of a rule. On the recommendation of then-Vice President Aaron Burr, the Senate eliminated a rule called the “previous question” motion, noting that it was rarely used and thus obviously unnecessary. That rule allowed the Senate to force a vote to move off a given topic. It was decades until anyone realized its absence meant that any senator could talk about anything they wished, for as long as they wished. The filibuster was born.
Early in American history, the filibuster permitted an impassioned minority to hold the floor, ensuring they could make their case, no matter the impatience of the majority. The first known filibuster occurred in 1841, over an issue of patronage: The minority Democrats wanted to force the majority Whigs to use their preferred printers to produce the Congressional Globe, a forerunner to today’s Congressional Record. Months later, a more consequential filibuster arose, as Sen. John C. Calhoun (D-SC) tried to block the formation of a national bank.
The filibuster, at this time, was an unbreakable tool of delay. Unlike today, when 60 senators can force a vote using a process known as cloture, there was no way to end the obstruction. But none was needed. “Minorities used the filibuster to slow the majority’s agenda but did not expect to kill it in the end,” write Richard Arenberg and Robert Dove in In Defense of the Filibuster: The Soul of the Senate. Power was checked by restraint; paralysis warded off by norms. But the history of the filibuster is the story of the power overwhelming the restraint, the rule triumphing over the norm.
When filibusters began to be used to kill the majority’s agenda, the majority responded by introducing ways to end filibusters. In 1917, cloture was introduced, with a two-thirds majority required for its use. In 1975, that threshold was lowered to three-fifths, where it stands today. Still, for most of American history, filibusters were rare. There is no perfect count of how many filibusters are launched, in part because it is sometimes unclear if a filibuster is even being attempted. Oftentimes, the threat is informal, even anonymous — a bid to keep legislation from being considered at all. The closest we have, then, is the count of cloture votes, which records how often the majority tries to end a filibuster. And what they record is that the Senate of today is nothing like the Senate of yore, because the filibuster of today is nothing like the filibuster of yore.
From 1917 to 1970, the Senate took 49 votes to break filibusters. Total. That is fewer than one each year. Since 2010, it has taken, on average, more than 80 votes each year to end filibusters. And even when those votes succeed, they are not costless: The cloture process consumes more than 30 hours of floor time, which is one reason a strategy of constant filibustering is so appealing to minority parties: The simple act of breaking constant filibusters paralyzes the Senate majority, ensuring they have less time to legislate, and thus can get less done. That’s why filibusters are routinely launched against nominations or bills that ultimately pass unanimously.
The filibuster has turned the Senate from an institution in which bills passed when a majority of senators support them to an institution in which bills can only pass, with rare exceptions, with the backing of a 60-vote supermajority. And since 60-vote supermajorities are exceedingly rare in the Senate, the result is that the Senate has lost the ability to routinely pass legislation, solve problems, and deliver the solutions Americans vote for.
There are many who prefer this state of affairs to the alternative, and my intention is to consider their arguments comprehensively and seriously. But there is a larger point to this piece, too. I have spent my career covering policymaking in Washington. And my conclusion is this: The most important policy question, by far, is whether the Senate remains a 60-vote institution. It is on that question that almost every other policy issue depends. It is in the shadow of that rule that so many of our other policy debates come to naught, leaving voters frustrated and confused. And so it deserves far more discussion than it receives.
Argument 1: The Senate is the cooling saucer of democracy
As the story goes, Thomas Jefferson asked George Washington to explain the need for the Senate, which seemed, to him, a useless redundancy given the existence of the House. “Why,” Washington asked in reply, “did you just now pour that coffee into your saucer, before drinking?”
“To cool it,” said Jefferson. “My throat is not made of brass.”
“Even so,” said Washington, “we pour our legislation into the senatorial saucer to cool it.”
There’s no evidence this exchange ever occurred, and it seems unlike both men. Jefferson long believed in the need for two legislative chambers, telling the Marquis de Lafayette in 1789 that “for good legislation two houses are necessary.” Washington didn’t tend to speak so elliptically, or condescendingly.
But the myth endures because it expresses the Senate’s conception of itself: a body insulated from the passions of the moment, where deliberation reigns and the hasty, impulsive bills sent by the House are subjected to patient, proper scrutiny. In this telling, it is no mistake that it is difficult to pass anything through the Senate. That is the point of the institution, and of American government.
This is all true. The Senate was designed to be insulated from the passions of the moment, to foil democratic whims and passions. That’s why each state receives equal representation, making the Senate the most undemocratic legislative chamber in any advanced democracy. That’s why senators serve six-year terms — four years longer than members of the House, and two years longer than the president. It’s why senators were originally chosen by state legislatures, not directly by voters. It’s why Senate elections are staggered, with only a third of the body facing popular judgment in any given cycle.
But the Senate was not designed to have a supermajority requirement. The founders considered such structures and rejected them outright, in arguments that read as prophetic today. In Federalist 22, Alexander Hamilton sliced into the case for a supermajority Congress, writing:
This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. Its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.
In Federalist 58, James Madison wasn’t much kinder:
It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.
The United States is alone among advanced democracies in how difficult it is to get anything done. Legislation can be blocked by the House, the Senate, or the president, all of whom face different electorates, on different cycles. It can be overturned by the Supreme Court, where nine robed judges are protected by lifetime appointment. Constitutional amendments are uniquely difficult, and can be blocked by the states. To attain a governing majority across this many conflicting institutions requires parties to win multiple elections, over multiple election cycles, by appealing to multiple kinds of electorates. All that was true before the advent of the 60-vote supermajority requirement, and it will be true if that requirement is abolished.
Eliminating the filibuster would not bring the United States’ political system into alignment with other modern democracies. In 2009, Alfred Stepan and Juan Linz compared the American political system to that of 22 other peer nations. They were looking for “electorally generated veto points” — that is to say, elected bodies that could block change. More than half of the countries in their sample only had one such veto point: the prime minister’s majority in the lower legislative chamber. Another 7.5 had two veto players (France, for reasons not worth going into here, is the odd half-country in the sample, as its system has different features under different conditions). Only two countries, Switzerland and Australia, had three veto players. And only one country — the United States — had four.
The founders envisioned a system of checks and balances, of pluralistic competition and deliberative government. That system had, and has, nothing to do with the filibuster. If anything, it is imbalanced by the filibuster: When Congress can’t pass laws, pressure mounts for the president to stretch executive authorities, as happened after the DREAM Act failed despite receiving 59 votes in the Senate, pushing President Obama to do through executive action what the filibuster prevented Congress from doing through legislation. Similarly, the Supreme Court grows in power as Congress gridlocks, in part because it becomes impossible for Congress to alter provisions of bills that fall to constitutional challenge, and in part because the paralysis of the legislative branch pushes movements to try and achieve their goals through the courts.
Absent the filibuster, we would still be a uniquely fractured, fractious system. But removing the filibuster would restore the political system to something nearer to the founders’ intent: one where “the regular deliberations and decisions of a respectable majority” drive governance, and where the legislative branch is preeminent.
Argument 2: The filibuster protects minorities from the tyranny of the majority
Defenders of the filibuster, liberals and conservatives alike, hold that it protects the vulnerable few from the whims and will of the many. In 2005, when Senate Republicans threatened to eliminate the filibuster against judicial nominees, the liberal Nation magazine warned, “the gravest fear of the Founders — tyranny of the majority — will be the lasting legacy of George W. Bush, Tom DeLay, and Bill Frist.”
There is a cruel irony to this argument, as across the 20th century, the filibuster was primarily used to preserve the tyranny of the majority over the minority. Filibusters were rare in the midcentury Senate, but when they happened, it was primarily for one purpose: the preservation of racial segregation, hierarchy, and violence in the South. As Alex Tausanovitch and Sam Berger write in their report “The Impact of the Filibuster on Federal Policymaking”:
From the late 1920s through the 1960s, the filibuster was primarily used by Southern senators to block legislation that would have protected civil rights — anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting. These anti-civil rights filibusters were often justified with “inflated rhetoric about an alleged Senate tradition of respecting minority rights and the value of extended debate on issues of great importance.
The longest filibuster in American history by a single senator remains Strom Thurmond’s 24-hour, 18-minute stemwinder against the 1957 Civil Rights Act. The most notorious filibuster in American history was the 74-day campaign to block the Civil Rights Act of 1964. This is the historical truth of the filibuster: It is a weapon wielded by the racial majority against racial minorities, cloaked in the rhetoric of protecting minority rights.
It is also the modern truth of the filibuster. As Jonathan Chait writes in New York magazine, the US Senate is “the most powerful force for structural racism in American life.” The Senate grants unusual power to small states, and small states tend to be whiter than big states. In the New York Times, David Leonhardt calculated how many senators each racial group gets per million people. White Americans — the racial majority — get 0.35 senators per million people; Black Americans have 0.26; Asian Americans are right alongside them, with 0.25; and Hispanics are last in senatorial power and representation, with 0.19.
The Senate is a uniquely undemocratic institution, and the filibuster has been a bulwark against even mild pursuit of equity. By any normal standard of democracy, fairness, or representation, Washington, DC, and Puerto Rico deserve the opportunity to be states. They are filled with American citizens. They pay taxes. They are, each of them, bigger than states that currently enjoy Senate representation: DC is larger than Vermont or Wyoming; and Puerto Rico is larger than DC, and also than Iowa, Nevada, Arkansas, Mississippi, Kansas, Nebraska, New Mexico, West Virginia, Idaho, Hawaii, New Hampshire, Maine, Montana, Rhode Island, Delaware, South Dakota, North Dakota, and Alaska.
The primary obstacle to DC and Puerto Rico being offered the political representation they deserve is, yes, the filibuster. But an effect of their disenfranchisement — and a cause of it — is that DC and Puerto Rico’s exclusion from representation keeps the Senate, and thus the distribution of American political power, whiter than it would otherwise be.
“America has had over 2,500 senators,” says Stasha Rhodes, executive director of 51 for 51, a group advocating that the Senate bypass the filibuster on a vote for DC statehood. “Only 10 of them have been Black. That speaks a lot to how our democracy has left out Black and brown people. And Washington residents have never had senators. When DC becomes a state, it would be the largest plurality of Black voters, and I think that speaks to why so many work so hard to lock us out.”
And it’s not just statehood. As the country’s demographics have shifted, politicians and judges who fear the rising political power of a diversifying America have sought to disenfranchise the voters they fear. They’ve gutted the Voting Rights Act and refused to pass a replacement. They’ve run voter purges and passed restrictive ID laws; they’ve removed polling places from urban centers and limited the hours during which people can vote.
After winning the 2018 midterms, the first bill House Democrats moved was HR 1, the For the People Act — an ambitious package of voting reforms meant to ensure the right to vote is actually a right. But that bill has no chance of passing the Senate so long as the filibuster survives. And some Democrats, at least, are waking up to the danger the filibuster now poses to the very core of American democracy, to the rights so many fought and bled and perished to secure.
One of the heroes of that fight was Rep. John Lewis, who died in July. During his eulogy, former President Barack Obama said, “You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for.” And then Obama turned to address the Senate Democrats who claim to support voting rights but intend to let the filibuster rob those rights from so many. “If all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do,” he said.
It is a woeful abuse of history to claim the filibuster protects the minority from the tyranny of the majority. As a weapon of the status quo, the filibuster is wielded by those who’ve already secured political representation and power, and so is often a tool the powerful use to protect their existing privileges. That the filibuster’s defenders cloak themselves in the glittering language of minority rights even as they’re using the filibuster to deny minorities rights is one of America’s more grotesque rhetorical inversions.
Argument 3: But the filibuster has stopped things I don’t like from happening, too
The filibuster holds the same appeal to senators of both parties. Yes, it wrecks their ability to govern when in the majority. But it also allows them to wreck the other party’s ability to govern when they hold the gavel. And in politics, as in life, we are often more averse to loss than we are buoyed by gain.
At the core of the debate over the filibuster, then, is this simple truth: Members of both parties prefer the problems of paralysis to those of governance. They are more eager to block the other party from governing than they are committed to governing themselves. Or, to put it even more directly, given the choice between keeping the promises they made to the American people and sabotaging their opponents’ ability to keep their promises, they choose the latter.
Both sides understand this to be the core argument for the filibuster. As Senate Democrats weigh the rule’s future, Sen. John Barrasso (R-WY) told the Wall Street Journal that they should remember “the shoe will be on the other foot. And we will remind them of that before we take the vote.” He said Republicans would circulate a list of legislation they could pass in a filibuster-free Senate, starting with restrictions on abortion.
Unlike some of the other arguments for the filibuster, this is a valid point, not mere sophistry. I have heard Democrats try to rebut it by suggesting that the act of passing legislation inherently favors progressive priorities, and thus the filibuster intrinsically tilts toward conservatism. Republicans simply want to do less legislatively than Democrats do, and much of what they value most — appointing judges, cutting taxes — is protected from the filibuster (Democrats and Republicans jointly abolished the filibuster against judicial nominees over the past decade, and tax cuts can be routed through the budget reconciliation process, which I’ll talk more about in a moment). In this telling, the party that wants to use government affirmatively will always be more hindered by veto points than the party that wants to stand athwart government, yelling “stop!”
There may be truth to that argument, but I wouldn’t bet much on it. It is easy to imagine a Republican Party that tips deeper into ethnonationalist grievance and social traditionalism in the coming years and builds a fuller agenda through which to express its furies. And even now, there is much that social conservatives want to pass that has been blocked by the filibuster. It would be unwise for Democrats to end the filibuster assuming Republicans wouldn’t develop an agenda to take advantage of its absence.
What we are facing, then, is a trade-off: Should we prefer a system in which parties can, occasionally, govern, or a system in which they can’t?
Answering this question requires ridding ourselves of the cramped psychology of the Senate and prizing, instead, the vantage point of the voter. How, from a voter’s perspective, is American politics supposed to work? In theory, something like this: Parties propose agendas during elections. Voters choose the agenda — and thus the party — they like most. The newly elected party passes a substantial portion of their agenda into law. Voters judge the results and choose whether to return that party to power in the next election or give the opposition a turn at the wheel.
This is, of course, not how American politics works. Even in the absence of the filibuster, the American political system is thick with veto points and clashing institutions. It is also deeply undemocratic, with Republicans currently holding the White House and Senate despite winning fewer votes in the relevant elections. And then, layered atop all that, is the filibuster, which imposes a 60-vote supermajority requirement.
As a result, the feedback loop of American politics is fundamentally broken. Parties propose agendas during elections. Voter choose the agenda — and thus the party — they like most. That party may or may not win power, depending on the vicissitudes of gerrymandering, geography, and the Electoral College. Even if the voters’ chosen party does win power, it can’t enact the agenda it has promised, as it is almost impossible to win 60 Senate seats, and otherwise, the filibuster blocks most of what parties promise to do. As a result, rather than judging the results of the agenda they voted for, voters are left assessing why so little has happened, and trying to understand who is to blame for their problems going unsolved.
It is infuriating to try, decade after decade, to solve problems through voting different politicians into office, only to be failed by both parties, again and again. The frustration it engenders feeds demagogues and would-be authoritarians who are, ultimately, the only ones able to credibly promise change — even if, as Trump has shown, they also prove unable to deliver it. “Populists don’t just feed on socioeconomic discontent,” write William Howell and Terry Moe in Presidents, Populism, and the Crisis of Democracy. “They feed on ineffective government — and their great appeal is that they claim to replace it with a government that is effective through their own autocratic power.”
The American political system is fundamentally broken, and the filibuster’s mutation into a 60-vote supermajority requirement is at the core of that brokenness. In the absence of a supermajority Senate, parties will be able to pass more of the legislation they promise, and that will mean that partisans are more alarmed by the results when they lose power. But that’s how democracy is meant to work. The voters should receive some rough facsimile of the agenda they voted for, as that’s what allows them to decide how to vote in future elections.
The removal of the filibuster will also have a disciplining effect on politicians themselves, who now have the luxury of promising voters all kinds of policies they know can never pass. In his comments above, Barrasso threatened Democrats with the anti-abortion bills Senate Republicans push routinely now, knowing they will die in the Senate. But does the Republican Party want to stand behind that agenda, knowing it might actually pass, and voters might actually see and judge them on the results? How differently would politicians act if they couldn’t use the filibuster as an excuse for disappointing their base?
“It changes the dynamics when people are playing with live ammunition,” says Eli Zupnick, a former Senate staffer who’s now spokesperson for Fix Our Senate, a coalition of progressive groups pushing to abolish the filibuster. “In 2017, McConnell knew that without the filibuster, they’d have to pass things that would be politically catastrophic for Republicans. Instead, he was able to say, ‘Democrats didn’t let us pass this.’”
There is a simpler way of reframing this question: Do you trust voters to look out for their own interests? On the rare occasions when big things do pass, they reshape American politics because the American voter becomes a relevant force. When it came to repealing and replacing most of Obamacare — which Republicans used budget reconciliation to try and do with only 51 votes — it turned out that Republicans couldn’t even muster the votes in their own party to repeal the law. If they had, and tens of millions had lost health insurance, the political backlash could have been cataclysmic. Similarly, as the Bush tax cuts expired, Democrats ended up voting to keep most of them in place, because to do otherwise might have elicited voters’ wrath.
Senators flatter themselves by believing their obstruction is all that stands between the country and catastrophe. If they really believe in their agendas, then they should trust that the voters will be able, in a country where governance is straightforward and accountability is clear, to assess which party best serves their interests.
Argument 4: The filibuster ensures debate
The Senate likes to call itself “the world’s greatest deliberative body,” and the filibuster, at least in myth, is the soul of that deliberation. Any senator can demand to speak, whenever they choose. No viewpoint can be silenced or ignored. It’s an idea that has wormed its way into American lore. The filibuster is the rare bit of congressional arcana to appear at the Academy Awards: In Frank Capra’s classic film Mr. Smith Goes to Washington, Jimmy Stewart’s everyman hero uses a filibuster to shame a corrupt Senate baron into confessing his schemes.
But turn on C-SPAN (well, C-SPAN 2, for Senate coverage) and you’ll see something different. Adam Jentleson, a former staffer for Senate Majority Leader Harry Reid, describes the modal scene from the Senate floor in his upcoming book Kill Switch:
[I]f you’re lucky enough to catch a speech on the Senate floor, the senator giving it will probably be reading prepared remarks, which they’ll be seeing for the first time as they read them aloud. The chamber they’re speaking to will probably be mostly empty; if other senators are present, they won’t be paying attention to the speaker...Whatever the senator’s speech was about, it almost certainly will have no impact on the bill notionally under discussion, and change no minds. The negotiations between the leaders take place behind closed doors, far from public view. In an ironic twist, the senators stealthily filibustering the bill will inevitably be doing so in the name of unlimited debate, invoking grand principle to justify naked obstruction, despite the fact that nothing bearing even a passing resemblance to debate will be taking place.
The irony of the modern filibuster is that it rarely includes debate, and often prevents it. Indeed, senators often filibuster the motion to begin debate on legislation, which reveals how thin the commitment to deliberation actually is.
At the core of this is the reality that the filibuster of the present isn’t like the filibuster of the past, and it’s nothing like the filibuster of myth and film. Senators don’t need to speak in order to filibuster, and so they rarely do. The modern filibuster operates by either publicly or privately communicating the intention to filibuster. What that means, in practice, is that a senator tells the majority leader’s office they will demand a 60-vote threshold to move forward on the legislation, and moreover, they will make it slow and arduous to even get to the cloture vote. The usual effect of that is to prevent the majority from bringing a bill to the floor at all, because there’s not enough time to fight through all that delay.
Of course, if a single senator is filibustering a crucial bill, the supermajority will simply wait out the obstruction and vote for eventual cloture. This is where it is crucial to understand that the modern filibuster is not primarily, or even importantly, the tool of individual senators, and is instead the tool of parties. The mechanism through which they act isn’t debate, but the simple communication of intent: The minority leader’s office informs the majority leader’s office that they will not allow a given bill to move forward without 60 votes, and so if the majority does not have 60 votes, the bill does not move forward. Parties use the filibuster to stop their opponents from passing legislation, not to encourage discussion.
The filibuster once played an important role — a role it could still play, in revised form — in allowing individual senators to make themselves heard. But it is a wholly different animal when deployed in a routine, strategic way by organized political parties whose goal is blanket obstruction. Which brings us to the next argument.
Argument 5: The filibuster encourages compromise
In 2005, in a speech condemning the Republican majority’s threat to extinguish the filibuster against judicial nominees, then-Sen. Joe Biden (D-DE) said, “At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. … It does not mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That is what it is about, engendering compromise and moderation.”
There is, as Jonathan Chait has written, an obvious answer to this argument. “The simplest rebuttal to this claim is look around you. Do you see a lot of legislative compromise?” There are more filibusters than ever, and more partisan gridlock than ever.
But this argument is dominant enough that it’s worth unpacking precisely what in the logic is flawed — because it is both subtle and important. The theory is straightforward: A 60-vote threshold in a Senate means that the majority will always have to win over members of the minority to pass legislation. The filibuster therefore gives the majority party an incentive to win over members of the minority. That is, it gives them an incentive to moderate and compromise, just as Biden said.
This idea is dominant because, crucially, it’s half right. If you look across the Obama era, for instance, Democrats were desperate to find Republicans who would vote with them on health care, stimulus, or anything else. What it gets wrong is assuming that the majority party is the key actor here. The implicit logic, stated transparently, is this: If the majority party is willing to compromise, the minority party will be eager to compromise. It’s there that the logic falls apart, as Senate Majority Leader Mitch McConnell proved to such devastating effect across Barack Obama’s presidency.
What McConnell understood was simple and obvious: The party in power will get electoral credit for bills passed with big, bipartisan majorities. But by the same token, the party in power will get the blame if Congress is paralyzed, if bills die amid partisan bickering, if the problems of the nation go unsolved. Compromise isn’t a gift the majority offers to the minority. It’s a boon the minority offers to the majority.
“We worked very hard to keep our fingerprints off of these proposals,” McConnell said in 2011. “Because we thought — correctly, I think — that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”
This raises the question of why there was ever compromise in American politics, if the logic of elections is so ruthlessly zero-sum. I wrote a whole book about the answer, but in short: America’s political parties weren’t ideologically or demographically polarized for most of our history, which created unusual coalitions across the parties. As an example, the opposition to the Civil Rights Act united Barry Goldwater, a conservative Senate Republican, and Strom Thurmond, a conservative Senate Democrat. As the parties polarized, those coalitions dissolved.
A less understood contributor is that American politics — particularly at the congressional level — wasn’t that competitive in past eras. After the Civil War, Republicans were the dominant party for decades. After the New Deal, Democrats were the dominant party for decades. Our current era of seesawing power is the historical aberration, and as political scientist Frances Lee argues in her book Insecure Majorities, it has reshaped Congress and made bipartisan compromise nearly impossible.
Consider this chart Lee makes, which combines share of the national two-party presidential vote, share of House seats, and share of Senate seats. The higher the line stretches upward, the larger Democrats’ advantage. The further it plunges, the stronger the GOP’s lock on political power. This is the most competitive era in American politics since the Civil War.
Lee’s argument is that close competition, where “neither party perceives itself as a permanent majority or permanent minority,” breeds all-out partisan combat. When one party is perpetually dominant, the subordinate party has reason to cooperate, as that’s the only realistic shot at wielding power. Either you work well with the majority party or you have no say over policy, nothing to bring home to your constituents. In the modern era, neither party is perpetually dominant, and the minority’s best shot at wielding power is to ensure the majority fails to govern effectively. That makes bipartisanship effectively irrational.
Imagine you work in an office where your boss, who you think is a jerk, needs your help to finish his projects. If you help him, he keeps his job and maybe even gets a promotion — and, even worse, you and your friends may lose your jobs. If you refuse to help him, you become his boss, and he may get fired. Now add in a deep dose of disagreement — you hate his projects, and believe them to be bad for the company and even the world — and a bunch of colleagues who also hate your boss and will be mad at you if you help him. Think you’ll help him under those conditions?
That’s basically the Senate right now. Bipartisan cooperation is often necessary for governance but electorally irrational for the minority party to offer. If you’re the minority party, using the filibuster to make a hash out of the majority party’s agenda makes perfect sense. And so that’s how it’s used.
One could, given this logic, make the argument that removing the filibuster might actually encourage compromise. Perhaps if the minority can’t kill popular legislation, they will decide it’s better to cooperate on its construction, and get their ideas into the bill, than to ineffectually oppose everything that moves through the chamber. While I think that’s possible, I wouldn’t bet on it: Majoritarian incentives dominate the House of Representatives, and there’s no surplus of bipartisan dealmaking.
Removing the filibuster won’t create a utopia of compromise or even — given the many other checks and veto points in the American system, the strange composition of the House and Senate, and the staggered schedule of elections — reliable majoritarianism. It will simply create more routine conditions under which parties that convince the public of their agenda can govern.
Argument 6: But what about budget reconciliation?
This is, I will admit, my least favorite argument for the filibuster. Yet it is the one that the Senate has, in practice, adopted as its answer. So it deserves special attention.
The budget reconciliation process was created in 1974 as a way to expedite the completion of appropriations bills. It’s a fast-track that avoids not just the filibuster but a normal amendment process and a normal committee process. It can only be used for one legislative package a year, and it includes a host of restrictions: Every provision that goes through budget reconciliation needs to certified by the parliamentarian as primarily related to taxing and spending, it can’t increase the budget deficit in its 11th year, and it can’t make any change at all to Social Security.
In recent decades, senators from both parties have abused the budget reconciliation process to pass legislation they knew would otherwise fall to a filibuster. First, note the illogic of that: They are unwilling to get rid of the filibuster, but they are willing to avoid it by mangling another Senate procedure instead. Worse, because the budget reconciliation process is not meant for normal legislating, only certain kinds of initiatives can fit within it, and even they end up battered and bruised.
The reason Republicans keep passing tax cuts that expire after 10 years, for instance, is because of the budget reconciliation process — since provisions that increase deficits in the 11th year and beyond are ineligible, Republicans came up with the idea of simply tacking on an expiration date, adding a whole new level of volatility and unpredictability into the tax code.
Worse, both parties find themselves reaching for tax-and-spend solution when regulations would work better, because you can’t pass most regulations through reconciliation. You could easily pass, say, a carbon tax through budget reconciliation. But you couldn’t pass a renewable energy standard that reshaped private behavior, or new regulations on building materials and automobile construction, even if those would be more effective, or cheaper. Bills that go through budget reconciliation are worse bills, because they are written without the full range of tools and flexibility normally allowed to legislators.
Budget reconciliation also warps the priorities of the two parties. It creates an incentive to prioritize bills that can be crammed into the budget reconciliation process, and to neglect priorities that cannot. You can, for instance, pass a Medicaid expansion, or a tax cut, through budget reconciliation. You cannot pass a voting rights bill, or a gun control law, or a serious climate change package, or abortion restrictions. Parties sensibly focus on what they can pass rather than what they can’t, and so the agenda is endlessly tilted toward the narrow set of issues that can be coaxed into budget reconciliation.
This is a point that social conservatives should take more seriously: One reason economic conservatives fare so much better when Republicans take power is their priorities can be passed through budget reconciliation, while the priorities of the religious right — with the exception of judicial nominations — cannot. In recent years, there’s been some tumult in the Republican coalition as religious conservatives give voice to their feelings of betrayal, but so long as the filibuster exists, their agenda is legislatively hopeless.
This, then, is the bizarre equilibrium the Senate has settled into. The filibuster has broken the normal legislating process. But rather than fix the filibuster, both parties have broken another Senate rule so they can pass a worse version of a limited subset of bills on a fraction of the issues that face the country. Either the filibuster is a worthy rule that the Senate should honor or it isn’t, and it should be abolished or reformed. But the status quo they’ve instead settled into, where senators don’t have to make the hard decisions about the future of their institution and the American people pay the price through badly written legislation and a vast range of neglected problems, is indefensible.
Argument 7: The Senate tilts Republican, and so will eliminating the filibuster
I mentioned, earlier, the argument that governing is inherently a progressive enterprise, and so eliminating the filibuster is inherently to Democrats’ benefit. The reverse of that argument is that the Senate as an institution tilts Republican, and so eliminating the filibuster will benefit Republicans.
A 2019 Data for Progress analysis by Colin McAuliffe found that the Senate has a 3 percentage point tilt toward Republican candidates. In an electorate as closely divided as America’s, that’s a powerful advantage. “The 1.5-percent penalty in the Electoral College was enough to elect the popular vote loser in 2016, but the penalty in the Senate was twice as large,” writes McAuliffe. A more recent FiveThirtyEight analysis pegged the bias at a startling 6 to 7 points.
Behind the tilt is the Senate’s overrepresentation of small states — small states tend to be whiter and more rural than big states, with fewer immigrants and more Republicans. In this way, the Senate doesn’t just favor Republicans but also pushes the GOP toward being a more ethnonationalist party, as it gives them a path to political power in which white votes are overrepresented and immigrants are underrepresented.
But the composition of the Senate isn’t frozen in amber. There’s an overwhelming case for DC and Puerto Rico statehood, but no chance of it so long as the filibuster remains in place. Whether removing the filibuster would advantage Republicans depends on whether Democrats actually believe in democracy and choose to enfranchise the Black and brown voters who are currently denied representation outright. (Though note that even these moves wouldn’t erase the Democrats’ Senate woes: Silver calculates that even if DC and Puerto Rico proved reliable Democratic states, they would only reduce the Senate’s pro-Republican bias to 4.5 points.)
In 2018, Sen. Sheldon Whitehouse (D-RI) was asked about statehood for DC and Puerto Rico. “I don’t have a particular interest in that issue,” he replied. But he went on to say something unintentionally revealing: “The problem of Puerto Rico is it does throw off the balance so you get concerns like, who do [Republicans] find, where they can get an offsetting addition to the states?”
This is a striking statement: Whitehouse argued that it was easier to leave millions of Black and brown voters disenfranchised than to grant them the representation they deserve, because if they did get representation, they may choose to vote for members of Whitehouse’s own party, and the other party would think that unfair. This is how the injustices of the status quo protect themselves: They present alterations to the system as violence or cheating, and existing inequities as the natural order.
Whitehouse walked back his comments under criticism, but the way he did so was telling. “I would support statehood for Washington DC and Puerto Rico if either of those proposals came up for a vote in the Senate,” he said. But this reflects the way the filibuster lets politicians support ideas without actually committing to them: Statehood for DC and Puerto Rico will never come up for a vote in the Senate so long as the filibuster endures in its current form.
So it is true that the Senate tilts Republican, but it is also true that if they eliminated the filibuster, Democrats could try to fight for the democracy they claim to believe in. They may lose that fight, but they should look around: They are losing that fight now, and the surest way to lose it in the future, too, is to refuse to actually fight back.
There is something Rhodes, the director of 51 for 51, told me that rings in my head. “I think the story of a democracy is always valued over the work it takes to actually have one.”
Argument 8: It’s better for nothing to happen when the country is this polarized
In 2014, then-Senate Minority Leader Mitch McConnell gave a speech titled “Restoring the Senate.” In it, he leveled a blistering critique at the degraded state of the institution in which he served, and explained how, if he won back the gavel, he’d lead the Senate back to greatness.
“Without some meaningful buy-in, you guarantee a food fight,” McConnell said. “You guarantee instability and strife. It may very well have been the case that on Obamacare, the will of the country was not to pass the bill at all. That’s what I would have concluded if Republicans couldn’t get a single Democrat to vote for legislation of this magnitude. I’d have thought, maybe this isn’t such a great idea.”
Read today, the speech is darkly cynical, as McConnell did win back the gavel and he did the exact opposite of what he promised. How many Democratic votes did he attract for the 2017 tax cuts, or on Obamacare repeal? Why didn’t the absence of bipartisan buy-in make him question the wisdom of his path? But just because McConnell is a hypocrite doesn’t make him wrong. In a country this polarized, perhaps he’s right: if you can’t secure bipartisan support, maybe you shouldn’t move forward.
The logic is appealing because it inverts the basic case against the filibuster even as it accepts most of its premises. Yes, the filibuster paralyzes governance and leaves terrible environmental, social, political, and economic problems to fester. But in a bitterly divided polity, that’s a feature, not a bug. If we can’t agree on what to do, maybe it’s better we do nothing than do things that half the country will oppose, or that will just be undone when the other party takes power in a few years.
This is a reasonable argument. But my reasons for skepticism are threefold.
First, the problems we face are simply too big for inaction to be a safe or moral course. If the only way we can seriously address climate change is a partisan bill passed by a Democratic Congress, that may be worse than a hypothetical world where Republicans take climate change seriously and work with Democrats on a bill, but it’s better than the actual alternative, which is runaway climate change leading to hundreds of millions of deaths and incalculable suffering.
Second, it’s a peculiarly American belief that there’s something intrinsically offensive about partisan legislating — a remnant of the founders’ hatred of political parties and the odd, post-Civil War situation in which the two major political parties were ideologically mixed and unusually cooperative. In other countries, it’s understood that political parties represent sharply different ideas, and that the purpose of the minority party is to criticize the majority party, not compromise with it.
Third, I think the argument is simply wrong, and recent events have disproven its core premise. There are three phases to a legislative proposal. The first is introduction, where the legislation is unformed but typically popular. The second is the partisan conflict, in which the legislation becomes polarizing and unpopular, as affected interest groups and the opposition party mobilize to kill the bill and win back power. Then, if the legislation passes, there’s the final phase: judgment, in which the public experiences the effects of the legislation and it either finds popular support or becomes a target for repeal.
The Affordable Care Act is a good example. The basic ideas in the bill were quite popular before they were rolled into a legislative package and endured months of Republican attack. At the time of its passage, the bill was unpopular, as McConnell notes. But after the Affordable Care Act became law, it slowly regained popularity, and ultimately withstood Republican efforts to kill it. Today, a majority of Americans approve of the law — a recent poll found more than 60 percent of Americans in favor — a sharp swing from the polling at passage.
The ACA’s transition from object of conflict to actual law, delivering actual benefits, has reshaped American politics in the Trump era. Democrats took back the House in 2018, largely by promising to defend the Affordable Care Act from Republican efforts to dismantle it. The Democrats’ presidential primary was dominated by an argument over building on Obamacare or supplanting it with Medicare-for-all, and Biden won in part by promising to do the former.
At the first presidential debate, Biden began the night by warning that Amy Coney Barrett, Trump’s nominee to replace Ruth Bader Ginsburg on the Supreme Court, would strike down the ACA, leaving Trump to lie that he has a comprehensive health care plan waiting to replace it. Trump’s deceit is galling, but it shows how the ACA’s passage has reshaped the politics of health care. The American people are perfectly capable of judging the policies that affect their lives and conveying the fury they would feel toward politicians who would threaten them.
The filibuster, in other words, traps us in the most polarizing and disagreeable phase of legislating: the partisan conflict phase. Ideas emerge, they become polarizing by virtue of being jammed into a zero-sum political system, and then they typically fail. The public experiences endless conflict but rarely sees its problems solved, or its material interests improved. If the two parties could legislate more effectively, more proposals would pass into the judgment phase, and either rise in popularity as they worked to better people’s lives or fall into disrepute as they proved themselves to be failures.
Either way, it’s simply not the case that a partisan vote promises a polarizing program: That’s true if the program is forever trapped in congressional bickering, but it often becomes untrue when a program becomes part of the lived experience of the American people.
Argument 9: The problem isn’t the filibuster, it’s how it’s used
In their book Defending the Filibuster: The Soul of the Senate, Richard Arenberg and Robert Dove don’t deny that the filibuster has been warped beyond all recognition. Rather, they argue that it’s not the filibuster’s fault, and so removing the filibuster is an improper remedy.
“To suggest that the filibuster should be eliminated because it is misused would be akin to recommending that automobiles should be summarily removed from our roadways because they have the potential to be injurious,” they write. “Rather, what is required in the Senate is a change in behavior to ensure that political overreaching as a product of hyper-partisanship does not become the new norm.”
This is an odd argument, but a common one. The problem is obvious: Hyperpartisanship is the norm, and it’s the norm for structural reasons that show no sign of abating. Rhetoric like this serves to obscure the choice we actually face: an era of hyperpartisanship in which the Senate is a 60-vote institution, or an era of hyperpartisanship in which the Senate is a 51-vote institution. To rework their analogy into a more fitting form, if you told me that every member of the Senate was going to be drunk for the foreseeable future, I would recommend they no longer be allowed to drive.
There are many ways to reform the filibuster such that debate is protected. Former Sen. Tom Harkin (D-IA) proposed an idea I’ve long been partial to: a filibuster “ratchet” in which each cloture vote would reduce the majority needed on the next cloture vote by three, until the bill could pass with 51 votes. In practice, this would guarantee eight days of debate on any bill. So if debate and deliberation are truly at issue, there are plenty of ways to sever the guarantee of debate from the supermajority threshold.
Arenberg and Dove reject Harkin’s idea because, in the end, debate isn’t the issue they care about. And that helps us put the question of the modern filibuster squarely: In an age when hyperpartisanship has made bipartisan governance impossible in most circumstances, should we make partisan governance possible, or accept a future of gridlock, paralysis, and drift?
I don’t believe that reform or elimination of the filibuster will solve all the problems that face America, or even reliably lead to outcomes I support. There is no utopia on offer, no end to our disagreements and debates and disappointments. While a 51-vote Senate would have a better shot at solving the problems that bedevil the country, it will not solve them all, and it may make some worse.
But in the end, I trust voters more than I trust politicians. And so I prefer a system in which voters get some rough approximation of the change they vote for, and can then judge the results and choose whether to reelect the leaders they entrusted with power or throw them out of office. In American politics, perfection is too much to ask for. But some bare level of accountability is not.