14 January 22
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Criticism of the Senate's peculiar rule of the filibuster, a rule it should be noted is not rooted in the Constitution, is not new. It has long frustrated those who wish to use the unimpeded power of the majority. In many cases it has been deployed, particularly around civil rights, with moral repugnance. And yet the ideal of a passionate minority having the ability to make their viewpoint heard, when employed by people of good faith, is a potentially admirable check on majority overreach.
The key to this entire system, however, is good faith and judicious use. No one who has even casually observed the workings, or more accurately the dysfunction, of the Senate in recent years can conclude that it is a place of either of these qualities. The filibuster has been employed by both Democratic and Republican minorities; it is now the norm of the modern Senate. In such a circumstance, the filibuster has been weaponized in a way that would have been beyond the dreams of even the most optimistic obstructionists of yore.
To all those who say that the filibuster promotes bipartisanship, why has the Senate become less bipartisan the more it has been used? What the filibuster does is prevent votes. Think about that. The whole purpose of a representative democracy is your representatives vote on the bills that address the needs of the nation. But unless you have 60 votes, a near impossibility in the modern Senate, you don’t vote - except on judges and bills that affect the budget, which not coincidentally happen to be the two biggest Republican objectives.
Imagine a Senate without the filibuster. It would mean that voting rights would come up for a vote. And immigration. And all these other bills that address education, or climate change, our tax structure, and so on. With this onslaught of legislation, what would Republicans do? Just sit back and let the Democrats pass their versions without input? Or would they try to shape the bills before they become law? And wouldn’t the Democrats be inclined to compromise in some ways in order to incorporate some new ideas or pass the bills with larger majorities? Maybe in some cases, on some certain issues, a Republican vote might be closer to the consensus than a recalcitrant Democrat. Isn’t this bipartisanship?
Another byproduct of the filibuster can be seen in the Build Back Better bill. Here, a host of different issues that should be debated and voted on separately on their merits, get thrown into an unwieldy omnibus bill because it can be passed with a simple majority through reconciliation. This leads to less collaboration, and worse policy.
The truth is that many senators would rather hide behind the filibuster than be called out in a roll call of votes. It has become a shield for cowardice, disingenuousness, and naked self-interest.
It pains me to see this because it did not have to be this way. But there is no use bemoaning a world that does not exist. In looking at the filibuster and the debate about what to do about it, one side wants to move legislation through Congress, its constitutional purpose, and the other side wants to put up a wall of inaction - on everything. The American public deserves a Congress that works. We deserve to vote on our representatives according to what they have done, or haven’t done, to address the demands of the times.
We need a lot more votes on bills and a lot fewer votes on obstruction. We need progress not paralysis. And that means the filibuster should be changed, in some form at least, to break the incentives for those who pay no price in standing in the way of progress.
I will leave it to others who understand better the workings of the Senate and the trade-offs for different changes in the rules to weigh in on the merits of various approaches to reform. But starting with voting rights, all who care about the here and now should change an archaic vestige of the past.
It might not happen now. There is still too much opposition from Senators Manchin and Sinema, along with of course the entire Republican Party. But never in my life can I remember more energy in the American public around the question of how the Senate functions. It seems from his latest public statements, that President Biden is going to put more of a spotlight on this issue and he has a remarkable amount of the Democratic caucus on his side.
It might not be enough in the short term. But be wary of predicting the future, even considering the current dangers to the integrity of our system of government. Making Congress work has now become an animating principle for the political party that currently represents the majority of Americans. And that is a major accomplishment that will, in my opinion, eventually lead to change in some form.
One final note, much of the policies of the Republican Party are unpopular with the public. And the filibuster in various ways prevents them from acting in a manner that damages their standing.
It really is a barrier to governance, and thus has become a barrier to the health of our nation.
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