The United States Congress is undoubtedly one of the most peculiar legislative bodies in the world. Writers of the Constitution established two unique houses within its legislative branch, each with its own modes of election, representations, differing qualifications, and purposes.
Though both houses must pass any bill for it to become a law, the Senate was always intended to be (and has been) the de facto upper house. Yet, the upper house and one of its bizarre procedures continually prevents legislation which would otherwise advance the interests of the majority of American citizens. Yes, we’re talking about the filibuster.
A brief background
In the House of Representatives, time for debate of any given bill on the floor is limited, and for good reason. With 435 voting members, allowing all members of the House to engage in debate is counterproductive. Limited debate also means House members must come to the debate with a general understanding of the bill, committee recommendations, and the ability to discuss in a pointed manner.
The Senate always maintains a lower number of members, and as such, permitting longer debate is not such a bad idea. A senator can attempt to persuade fellow members of the body to his or her side of an issue by drawing out the merits or flaws of a bill. The Senate’s great failure, however, is that ending debate on any given bill requires a supermajority of 60 of its 100 members. The Constitution does not call for this supermajority to end debate, but the measure is part of the Senate’s rules. Somewhat paradoxically, Senate rules can be changed with a simple majority vote.
Because the balance of power between Democrats and Republicans vacillates by a only few senators each term, the likelihood of either party obtaining a supermajority is small. In the last 40 years, it only happened during President Barack Obama’s first two years in office. Democrats had 60 seats, allowing them to pass The Affordable Care Act without a Republican filibuster.
The time is long overdue for the Senate to change its rules and eliminate the filibuster, permanently.
An anti-democratic concept
The filibuster works against one of the central concepts of a representative democracy — a plurality vote. In most American political institutions, the system is based on a plurality vote, meaning the side with the most votes carries the issue. The filibuster is anti-democratic, allowing the minority party to block legislation supported by a majority of senators.
Yes, there are other instances where a supermajority is needed to act on a given change, such as amending the Constitution or overriding a presidential veto. However, those mechanisms attempt to make changes that have more finality than merely advancing legislation out of one house of Congress.
Legislation is stalled
How many beneficial pieces of legislation never happened because of the Senate filibuster? On more than one occasion, Southerners filibustered various civil rights bills. In 1957, Senator Strom Thurmond (R-SC) set the record for a filibuster, speaking for more than 24 consecutive hours.
Since the end of the Civil Rights Movement, the use of the filibuster expanded to nearly every topic of legislation — campaign finance, lobbying reform, health care, gun reform, economic stimulus, immigration, etc. In fairness, the perspective of whether a bill is good or bad often depends on a person’s ideological beliefs.
However, allowing Congress to engage in its primary task of legislating means taking the risk that they will make mistakes. This is part of how policy formation works. If a law establishes a policy which works well for the American people, those elected officials will have earned the right to reap the success. If the policy turns out poorly, voters can hold them accountable and elect new officials who will vote to reverse a poor policy decision. As the situation currently stands, the filibuster allows senators to not make difficult decisions on legislation that has widespread support among voters.
Two key pieces of President Joe Biden’s agenda have widespread support in the public, but face an uphill battle due to the filibuster. HR 1, or the For the People Act, currently has 68% of voters backing its changes to election laws. The American Jobs Plan, or the Biden infrastructure plan, has a similar amount of support from the public.
Each presidential administration and new Congress should receive a fair chance to implement policies, particularly at the beginning of a term, when the American people have spoken in recent elections.
Inactivity is activity
Any party in the Senate minority counts on legislative inertia. When a minority party can block policy changes, it means nothing happens. In these instances, nothing is something. When the people elect officials to improve the conditions of the nation, they do so with the expectation of positive change. If the minority party can prevent change from occurring, they see it as a victory, and as an added bonus, it allows them to campaign that the opposition didn’t fulfill their promises. A majority party cannot be expected to deliver on promises when need more than a majority of voters.
Each state receives two senators regardless of its population, and this is an important means of protecting smaller states from the legislative whims of larger states. Yet, that senatorial advantage of small states is exacerbated by the filibuster, allowing certain individuals to wield a disproportionate amount of power.
The 21 least populous states in the Union are home to approximately 35 million people, which is still significantly less than California’s approximately 40 million people. These smaller states, by themselves, could stage legislation gridlock with their senators despite only representing slightly less than 10% of the nation’s overall population.
When any senator filibusters, his or her fellow party members have shown reluctance to vote for an end to debate. As such, a senator from Wyoming, the least populous state (with a scant 576,000 people), can prevent legislation from coming to a vote that would benefit the nation.
Moreover, crafty senators such as Joe Manchin (D-WV) have learned how to leverage their position as a ‘moderate’ party member to provide them with extraordinary amount of influence.
After the 2020 Elections, Democrats miraculously pulled off a tied Senate. Since Vice President Kamala Harris’ one Constitutional responsibility is to break tie votes in the Senate, Democrats have an opportunity to legislate. However, no Democrat can break ranks in voting if they hope to achieve their legislative aims.
Manchin has already exhibited a willingness to defy the party and the president and don’t expect him to change. In West Virginia, Manchin perpetually performs a balancing act in maintaining his Democratic chops while pleasing an increasingly more conservative constituency. West Virginia’s senior senator claims he does not wish to abandon bipartisanship, and that’s not a bad goal.
While we can take Manchin at his word for wanting to bring Americans together and applaud the effort, I would hope even he could see that the circumstances of his calls for bipartisanship seem to indicate he’s also concerned about the ‘Trump effect’ in West Virginia. His current position as the lynchpin of the Senate allows him to keep walking a tightrope to win another term in 2024.
Manchin’s efforts earned him an invitation to the White House last week and First Lady Dr. Jill Biden made a trip to Charleston with the senator (and West Virginia’s unofficially official ambassador Jennifer Garner). Also, Manchin’s wife, Gayle, was recently nominated by President Biden and confirmed as a co-chair to the Appalachian Regional Commission.
Meanwhile, important legislation vital to the nation and supported by large swaths of the nation remains in limbo because … well … Joe Manchin.
The bipartisanship Manchin seeks comes at a high price, and it’s a price he doesn’t have to pay. Manchin is 73 years old with financial assets above and beyond most Americans, let alone West Virginians. For those outside of the Mountain State, the Manchin name is almost as politically connected as a family can be. Legislation held up in the name of bipartisanship will neither affect Manchin nor his family. It does, however, affect most of his constituents.
The filibuster has already been eroded by both parties
Filibusters do not extend to judicial nominees and other executive appointees, though they once did. In years past, the minority party could filibuster a nominee to any federal court, including the Supreme Court. Federal courts already faced a backlog of cases without the filibustering of appointed judges.
In 2013, then Senate Majority Leader Harry Reid (D-NV) led the effort to change rules to allow judicial nominees (other than Supreme Court nominees) and other executive appointments to proceed without the option of a filibuster.
Subsequently, Republicans acted in accordance in 2017, when then Senate Majority Leader Mitch McConnell (R-KY) ended the filibuster for Supreme Court nominees, paving the way for President Trump to appoint three justices to the nation’s highest court (none of whom tallied more than 54 votes in confirmation).
Congress also passed the Congressional Budget Act of 1974, which permits the Senate to waive the 60 vote supermajority on bills associated with the budget and spending. For nearly 50 years, the Senate moves forward with legislation dealing primarily with the nation’s fiscal policies because it is necessary to the functioning of the federal government. The time has come to extend this process, known as ‘reconciliation.’
Federal law will still remain consistent
Despite what Manchin and other elected officials might have us believe, the end of the filibuster will not usher in an era of back and forth legislation, undoing the actions of a previous Congress. To effectively legislate, either major party will still need to secure the trifecta of controlling the presidency, a majority in the House, and a majority in the Senate. Even if they achieve this end, they must still produce results or face the prospect of being voted out of office.