By Michael Fullilove |
The most important change in American politics over the past 25 years has been what amounted to a constitutional amendment by procedure. Until 1970, a rarely-used maneuver (usually—though not always—on civil rights issues) the filibuster has evolved into a common practice. Its use spiked in the mid-1980s, and then dramatically increased after the 2006 elections, when Democrats took control of the Senate. Since that time, even routine matters have come to require 60 votes, all but transforming the Senate into a supermajoritarian institution.
The routine filibuster has created a very different sort of Senate than the framers envisioned. The Constitution ensured that on matters particularly sensitive to national unity (such as approval of treaties), the Senate would need more than a majority to proceed. But the framers rejected a system of government that required super-majorities on all questions, since, as Alexander Hamilton explained, "The public business must, in some way or other, go forward." Hamilton discussed the principle in Federalist 22, reasoning that a system giving the "minority a negative upon the majority" threatened to "substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority." The result, he cautioned, would "always savor of weakness."
That such a dramatic—and, in historical terms, very recent—change in how the Senate functions has occurred with little or no public debate (in sharp contrast to consideration of the 17th Amendment mandating direct election of senators, which also reconfigured the Senate structurally) is reason alone to embrace the idea of filibuster reform. Yet there's little reason to believe that the likeliest rules changes will end the Senate's dysfunction. Abolishing filibusters on motions to proceed will not affect filibusters on the bill itself; and mandating a "talking filibuster" seems like an invitation to gridlock, not a remedy for it.
The underlying problem is not the expansion of the filibuster but the polarization of the Senate, which gives the minority a greater incentive to obstruct rather than to participate in good faith in the legislative process. In the end, the Senate will have to choose between the current structure, which has produced a chamber that savors of weakness, and rules that will allow legislation to proceed more efficiently, if through more party-line votes as in the House of Representatives. Neither option, alas, is conducive to good public policy.
About KC Johnson Professor at Brooklyn College
Mitch McConnell Senate Minority Leader
Jeff Merkley Democratic Senator from Oregon
John C. Fortier Director of the Democracy Project at the Bipartisan Policy Center