On July 28, 2017, John McCain held the fate of the Affordable Care Act in his hands as he headed to the Senate well to cast what everybody expected would be the decisive 50th vote to repeal the most ambitious piece of social legislation that had been enacted since the Great Society. When he first ran for president, McCain had confessed plainly to me that he had barely given health-care policy much thought. He had done little to educate himself since, and Obamacare was not among the pet issues where he departed from party orthodoxy. Yet McCain seemed to decide this would be his moment to strike back at Donald Trump, or etch into stone his reputation for independence, and killed repeal by turning his thumb down and keeping the law in place.
The drama of this little set piece, and the relief among liberals at its result, has obscured a larger question hanging over that vote — one that might have consumed them had McCain’s thumb turned the other way, and which is now the Democratic Party’s most pressing dilemma. How was it acceptable that a law that had required a 60-vote supermajority to pass the Senate could be wiped out with just 50 votes? Why would liberals or moderates accept the existence of a system that makes complex legislation almost impossible to build, yet easy to destroy? Who would ever design a system like this?
The answer is that nobody did. The Senate filibuster was not part of its original design. The Founders, scarred by the paralyzing effect of the two-thirds requirement in the Articles of Confederation, consciously rejected a supermajority threshold in Congress (except for a handful of designated special cases, like amending the Constitution, removing a president, or approving a treaty). The filibuster only appeared in 1837 as the result of a glitch in the rules, after the Founders had left the scene, and it changed form several times.
The system developed numerous quirks that defy any internal logic. It is possible to raise or lower spending levels of existing programs by a majority vote, except for Social Security (which is why Obama’s welfare-state crown jewel could be threatened, but Franklin Roosevelt’s could not). Court openings can also be filled with 50 votes, but routine legislation needs 60. The Senate requires less consensus to appoint a jurist with supreme power of judicial review to a lifetime appointment than it does to simply keep the lights on in the federal government (a task it routinely fails to keep up).
Adam Jentleson’s new book, Kill Switch, charts the rise and repeated mutations of the filibuster. A former Democratic Senate leadership aide, Jentleson assesses the chamber without the institutional nostalgia that tends to infect its alumni. He ably punctures the propaganda its advocates created to defend it (primarily a tool to allow the South from being outnumbered in Congress by the North, first on slavery, and later on civil rights). Filibuster advocates like to quote George Washington’s famous metaphor of the Senate as a saucer cooling down hot tea from the House — except the metaphor is a double fraud. Washington never said that about the Senate (the line emerged a century later and was put in his mouth), plus, of course, the Senate didn’t have a filibuster at all in Washington’s time.
Filibuster advocates depicted it as a way of ensuring “unlimited debate,” akin to free speech. Except the filibuster’s most enthusiastic advocates preferred to smother legislation without any debate or vote at all, resorting to that tactic only if quieter methods had failed. In its modern method, it rarely involves any debate on the Senate floor at all. Filibusters prevent debates from taking place rather than allowing them. (Not that it matters — debates in the modern era are mere exchanges of talking points that have no bearing on the outcome of bills, which is negotiated off the floor.)
Nor do they force the Senate to reach consensus. As Jentleson shows, filibusters often kill moderate measures that command wide support among both parties. After the horrifying Newtown massacre, pro-gun Democrat Joe Manchin and Republican Pat Toomey negotiated a handful of concrete steps that had overwhelming public support (including among gun owners), such as background checks for purchasing firearms. The bill died of a Republican filibuster, the brief debate a mere afterthought.
By custom, filibusters in the 20th century were reserved for civil-rights laws. (This was in keeping with the broad unstated agreement among most white Americans to not let the oppression of Black Americans come between them as it had around the Civil War.) Only by the 1990s was it frequently used for non-civil-rights measures, and not until the Obama presidency did it harden into a routine supermajority requirement.
The filibuster can be abolished with a simple majority, making it like a handcuff in which the captive has a key in his pocket. The Senate has already made a series of exceptions, and the need for those workarounds testify to the impossibility of assembling supermajorities in a polarized era. Having already allowed majority rules for judges, executive-branch appointments, and annual budgets, the last vestige of the filibuster is a 60-vote hurdle for non-budgetary legislation. Senate Democrats remain at least a couple votes shy of the 50 votes they need to change the rules so they can pass legislation with 50 votes.
Perhaps because the principled case for a supermajority has already been forfeited by its multiple carve-outs, the main rationale is now a threat: If Democrats allow the Senate to pass laws with a mere majority, Republicans will one day have this power and … pass laws. “Any time you start fiddling around with the rules of the Senate you always need to put yourself in the other fellow’s shoes and just imagine what might happen when the winds shift,” warned Mitch McConnell last summer. Even the Washington Post’s Aaron Blake cautioned Democrats that a filibuster-free Senate could soon fall into GOP hands, noting that “rolling back the most significant impediment to legislating could quickly boomerang.”
Of course Democrats don’t need much imagination to conjure a scenario where Republicans have full control of government; that exact situation prevailed during President Trump’s first two years. The filibuster played little role in slowing down his agenda. The main items Trump tried to get through Congress — his tax cuts for business owners, which passed, and Obamacare repeal, which failed — couldn’t be filibustered. Most of what Republicans want to do with control of government is confirm judges, cut taxes, and defund social programs, none of which require 60 votes anyway. No wonder they’re so fond of the current rules.
Some conservatives have taken to arguing that, if the legislative filibuster didn’t exist, they would enact ambitious right-wing measures. “When Republicans next controlled government …” warns McConnell, “we’d set about defending the unborn, exploring domestic energy, unleashing free enterprise, defunding sanctuary cities, securing the border, protecting workers’ paychecks from union bosses.” The conservative Washington Examiner tried to frighten off Democrats from granting statehood to D.C. and Puerto Rico by proposing, “say hello to East and West Dakota the next time Republicans have the trifecta, and ten Texases to boot.”
This last threat is especially comic. Washington, D.C., and Puerto Rico are currently existing territories, whose people have expressed a desire for statehood at the ballot box. There is no reason to believe Texans and Dakotans wish to split up their states, with all the dislocations it would bring, merely to pad the GOP’s Senate total. (Nor is it even clear that multiple Texases would help the GOP very long.)
What’s most amazing about this example is that the Republican Party already admitted a lot of small-population states in order to supply more likeminded senators. Republicans used their periods of control of government to admit a half dozen states into the union in the 19th century, without needing a supermajority to do it. Republicans divided the Dakota territory into two states specifically for this purpose. It is hard to frighten Democrats with the specter of superfluous Dakotas to pad the GOP Senate caucus when we’ve been living in that world for a century and a half.
But we should concede this much to Republicans: They would do something with the freedom of a governing majority unencumbered by the filibuster. Perhaps not the full parade of horribles (which are easier to fantasize about in the columns of a right-wing newspaper than to cobble national majorities of politicians to make their voters live under), but something, surely.
Why should such a world scare liberals? A system in which both parties can enact laws when they win power would, on net, benefit liberals far more than a system in which neither can. Just think of the major legislative changes of the last hundred years or so. Some came from the right, but far more came from the left. Alternatively, imagine if we wound the clock back and wiped out a century of major national laws. Neither party would be completely thrilled, but Democrats would find such a world far more horrifying than would Republicans — some of whom would like it.
And if you think the filibuster ensures that big laws obtain durable majorities, the fact is, almost every major social reform, from child-labor laws to Medicare, drew bitter conservative opposition. They passed in large part because the system did not have the combination of deep polarization plus routine supermajority requirement that now makes passing major social reforms nearly impossible.
Over time, liberals have produced more popular and workable reforms than have conservatives. This is almost an axiomatic property of liberalism and conservatism. The notion that liberals stand to lose by permitting more legislation defies all history and common sense.
Put aside what is best for Democrats vis à vis Republicans, and consider the filibuster question from the standpoint of the country as a whole.
One consequence of the filibuster’s growth is a mismatch between what candidates promise on the campaign trail and what they are able to deliver in office. To many voters unversed in Washington’s procedural intricacies, it seems as if they regularly vote for major change and then nothing happens. The distrust has accumulated over so many generations it has settled into an accepted feature of the landscape.
The cynicism has warped both parties, but the burden has fallen especially hard on the GOP. Republican politics has degenerated into an increasingly desperate and angry series of escalating procedural demands, precisely because voters have lost faith in the system. Right-wing demands to shut down the government to force Bill Clinton’s hand in the 1990s led to demands to threaten a debt default to extort Barack Obama. Ultimately Donald Trump’s populist appeal was rooted in his claim that the system was too corrupt and ineffectual to work except through the blunt-force willpower of a strongman who alone could fix it.
A more supple system might simultaneously permit Republicans to implement their program while forcing them to account for public opinion. The party is currently using the threat of implementing its own agenda as a tactic to scare Democrats out of reforming the Senate. What if its incentive was not to cater to activists by endorsing extreme proposals they know will never pass, but instead formulating plans that they think voters will like? A functional, majoritarian Senate might prod Republicans to abandon what Ross Douthat has called “dreampolitik” and engage with the real world.
The American political system has more veto players than nearly any other democracy, even without a Senate supermajority. A parliamentary form of government allows a single vote to produce a majority capable of implementing its program. Passing a law in the United States requires concurrent majorities in the House, the Senate (whose ranks are assembled in overlapping cycles, so it can’t produce a majority in a single spasm of populist anger), the president, and five Supreme Court justices. (The last part is often overlooked, but it is hardly a formality: After languishing for decades, health-care reform finally assembled the first three pieces, then very nearly perished in court over an exotic legal claim that one component of the law might conceivably lead to a national broccoli mandate.)
To believe the legislative filibuster is necessary, you need to believe that the Founders erred by designing a system that made passing legislation too easy before the Senate eventually stumbled onto a better system. You need to further believe that fellow democracies throughout the world erred by failing to copy this feature we developed over time, and that state legislatures likewise erred by failing to copy this method.
McConnell warns that if (non-fiscal) legislation could be passed with the mere concurrent majorities of the House and Senate plus the presidency, chaos would ensue: “Instead of building stable consensus, we’d be chaotically swapping party platforms. Swinging wildly between opposite visions that would guarantee half the country is miserable and resentful at any time.”
This dark scenario raises two questions. First, does McConnell believe the systems that lack a supermajority requirement — i.e., every other democracy in the world, plus all 50 state governments — suffer from this problem? If they are constantly swinging back and forth between extremes and producing misery, why have none of these states or democracies thought to “solve” their problem by copying our solution of a supermajority requirement? Perhaps the answer is that the knowledge the opposing side will have the chance to actually govern gives parties the opposite incentive: They want to enact popular laws the opposing aside will hesitate to repeal.
Second, does McConnell believe the filibuster has produced a “stable consensus” and prevented a situation faced by “every other democracy in the world”? Because misery and resentment certainly appear to be more evident than stable consensus.
Perhaps the oddest thing about filibuster nostalgia is that the defenders of the filibuster routinely warn that abolishing the filibuster will lead to conditions that are quite obviously the status quo. Even more odd, the senators who are most likely to insist on keeping the filibuster also seem most likely to complain about the Senate’s dysfunction. Joe Manchin never stops complaining about how terrible the Senate has become, while also clinging tenaciously to the rule that is its most distinct feature. An adviser to Rob Portman, the Ohio Republican senator who announced plans to retire, told National Journal, “If you want to spend all your time on Fox and be[ing] an asshole, there’s never been a better time to serve. But if you want to spend your time being thoughtful and getting shit done, there’s never been a worse time to serve.”
The Senate has grown increasingly dysfunctional and partisan over the same period of time that the filibuster has grown increasingly routine. Yet somehow, Senate old-timers see the filibuster as a remedy for their troubles, rather than a cause.
When Republican senators first threatened to scale back the filibuster under George W. Bush, the maneuver was deemed the “nuclear option,” supposedly because the aftereffects would be so toxic and awful neither side could bear to live with them. Like a nuclear strike, it was a weapon that could be useful as a threat but was too dangerous to use except in desperation.
Notably, however, the two times it has been used — first by Democrats in 2013 to eliminate filibusters of executive-branch nominees and federal judges, and then by Republicans in 2017 to allow confirmation of Supreme Court justices — it had no such effect. The Senate did not melt down. It was a one-day story. The second change was such a foregone conclusion you may not have even detected it in your daily news.
Still, the “nuclear” terminology has stuck. Perhaps this is mere habit. Or maybe it reflects a lingering institutional conservatism, a wish (that the system will melt down if altered) masquerading as prediction.
The truth is that the Senate legislative filibuster will be abolished at some point. The fallout will be brief. Once implemented, nobody will ever seriously contemplate going back. They will only wonder why it took so long, and why governing majorities sacrificed themselves for the sake of a custom that, if looked at dispassionately, barely rises above mere superstition.