Of the handful of defenses of the filibuster in common circulation, the most popular is that it deserves deference as the product of design by the Founders. This argument was repeated Monday night by Senator Joe Manchin:
The problem with this argument is it is not true.
The filibuster was not created in the Constitution. Indeed, the Founders considered, and rejected, a routine supermajority requirement. James Madison wrote:
“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.”
Alexander Hamilton likewise argued:
“To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. … If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, … Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
Reflecting their disdain for a supermajority requirement, the Constitution called for its use only in limited circumstances: approving foreign treaties, constitutional amendments, and removal of an impeached official from office. In 1805, however, as Brookings scholar Sarah Binder has explained, the Senate rules neglected to write a provision to end debate. It was not until 1837 — nearly half a century after the Constitution was enacted and its drafters had passed from the scene — that the rules glitch was first exploited in the form of a filibuster.
Indeed, the filibuster has changed repeatedly over the years. When it first appeared, unanimous consent was required to end debate, then two-thirds, then 60 percent. For the vast majority of its time, it was reserved by custom for rare instances of especially heated dissent (frequently by Southerners to block civil-rights bills.) The filibuster only came into its modern incarnation as a routine supermajority requirement during the Clinton era. Before then, legislation often passed through a majority vote.
Manchin is correct to observe that the filibuster “makes us different than any place else in the world.” Indeed, he understates the case. The filibuster not only distinguishes the Senate from other democratic bodies around the globe but also from all 50 state governments, none of which have copied it in their own senates.
Manchin might wonder what that difference tells us. Does the U.S. government function better than other democracies and better than every state government? That’s not the impression Manchin seems to give — when he is not praising the filibuster as essential to the proper functioning of the Senate, he is usually bemoaning the institution’s dysfunction.
Of course, the common fallacy that the Senate has always had a filibuster resembling the current version — or even a filibuster at all — is not the only argument for keeping it. But the fact it’s repeated so often reveals the low quality of justification its advocates are able to muster.
If they had good reasons to maintain the supermajority, they wouldn’t lean so heavily on false ones.