The Senate’s a weird place where a lot of good ideas hate to go.
They have to wind through obscure committees and oddball processes to finally take their place in the great American book of law. Procedures like the filibuster, cloture, and the Senate calendar aren’t, in and of themselves, things that average Americans ought to spend time thinking about.
But the reality is we have to because they play a crucial role in the obstacle course our best laws must traverse.
While the classic depiction of filibustering prevails — long-winded speeches lasting several hours into the night to prevent the majority from voting on their bills — its modern form can be as simple as 41 senators withholding their votes for cloture.
So, why are we talking about the filibuster now? The debate for and against it has resurfaced in Congress. Depending on who the winners and losers are may determine the legislative fate of President Biden’s agenda.
This month, Senate Minority Leader Mitch McConnell warned his colleagues of a “scorched-earth Senate” if the filibuster is nixed. Lucky for him, Sens. Joe Manchin (D-WV) and Kyrsten Synema (D-AZ) have made it clear they have no intention to get rid of it, depriving Senate Democrats of the votes needed to do so.
But if you listen to conversation developing, three fundamental myths about the filibuster keep repeating themselves — and they just won’t die.
Myth #1: The Filibuster is Part of the Senate’s “Design”
When examining recent comments from defenders of the filibuster, a common theme exists.
Take Sinema’s statement opposed to trashing it:
“Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.”
Ignoring the idealism and the mystifying demand for the Senate, a political body, to “put politics aside,” Sinima gets something wrong: the Senate was not created with the filibuster in mind.
Likewise, Manchin makes the same mistake. Take his comments on Meet the Press:
“The Senate is the most unique body of government in the world. It’s deliberate. It’s basically designed to make sure the minority party has input. That’s exactly our founding fathers.”
We can settle this with a quick look at the filibuster’s history.
When the Framers established the House and Senate, both bodies allowed for a simple majority to end debate, but in 1805, then-Vice President Aaron Burr urged the Senate to remove a complex and extraneous rule called the “previous question motion.” The motion was used to end debate on a bill and move it to a vote.
But, by 1837, the rule’s absence became a problem: Without the motion, the Senate’s business could be interrupted by a single member speaking at length.
So, while there might be legitimate reasons to defend the filibuster, let’s be clear of this fact: The founding fathers or the “design” of the Senate are not one of them.
Alternatively, we need to ask another, more challenging question. Would eliminating the filibuster conflict with the spirit of the Senate, which has long been one of decorum?
To give both sides their due, we should mention the most persuasive case for keeping the filibuster, Mitch McConnell’s.
In a Wall Street Journal op-ed, he said:
“Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like. None of us have served one minute in the Senate that was completely drained of comity and consent. This is an institution that requires unanimous consent to turn the lights on before noon, to proceed with a garden-variety floor speech, to dispense with the reading of lengthy legislative texts, to schedule committee business, to move even uncontroversial nominees at faster than a snail’s pace.”
Here’s his argument in layman’s terms: You may think I’m an obstructionist, but I’ve been a lot more civil than I can be — and if you kill the filibuster, all the decorum that greases the wheels of the Senate, and the wheels of the Biden agenda, will evaporate.
To McConnell, the difference between a Senate with a filibuster and one without it is common decency. It is a covenant between the majority and minority.
He also said this:
“… where every single task requires a physical quorum of 51 senators on the floor — and, by the way, the vice president doesn’t count. Everything that Democratic Senates did to Presidents Bush and Trump, everything the Republican Senate did to President Obama, would be child’s play compared with the disaster that Democrats would create for their own priorities, if they broke the Senate.”
That comment about the 51 senator quorum? That’s a pretty sneaky reference to the possibility of minority quorum busting — a scenario where, if all 50 GOP senators refused to do business, the Democratic Senate would grind to a halt.
And then there’s McConnell’s final argument, one that Democrats need to think critically about: “majorities are never permanent.”
For all his self-serving predilections, McConnell resisted ending the filibuster even when he was in the majority. And given their Electoral College advantage, Republicans are currently likelier to spend more time in charge of the Senate.
Eliminating the filibuster should be done in a way that Democrats think hard about because doing it with the slimmest of majorities and zero votes from the other side could be destructive for the reasons the Minority Leader lays out.
Reform might need to happen, but it should happen the right way.
And reform has happened before, bringing us to our second myth about the filibuster.
MYTH #2: The Senate Has Always Had the Same Filibuster
Liberals talk about the filibuster like it’s the final video game boss they can’t beat. Conservatives talk like it’s a hallowed tradition that’s never changed but unexpectedly finds itself on the chopping block.
The Senate has a near-painful amount of institutional memory. The House generally passes its rules every two years, making change relatively smooth. But the Senate is a “continuing body,” proceeding with the same set of rules it’s always had, with occasional and gradual reform. The result is a complex set of Senate precedents that run thousands of pages long, often contradictory, and change slowly over time.
But they still do change. And so has the filibuster.
And so, if reform’s been done before, we can debunk the final filibuster myth…
MYTH #3: Reform is All or Nothing
George Stephanopoulos recently asked President Biden, “Aren’t you going to have to choose between preserving the filibuster and advancing your agenda?”
This is a false dichotomy. Reforming Senate debate is not simply a matter of having a filibuster or not.
And the President knows it:
“I don’t think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days… You had to stand up and command the floor, you had to keep talking… You’ve got to work for the filibuster.”
As the Senate currently operates, 60 votes are needed to end debate and force a vote. As the most popular version of it goes, a talking filibuster would turn that burden around: A bill can only be stalled if 41 senators hold the floor to talk incessantly, Mr. Smith Goes to Washington-style. Things would end with either the majority pulling the bill or the minority falling below the 41-senator threshold, allowing the bill to advance.
There’s still room for error, but if reform doesn’t include the 41-to-block reversal, it probably won’t change much. While other ideas exist, the point is this: Filibuster reform isn’t black-and-white. And if Manchin and Sinema don’t support abolishing it, that’s not the end of the conversation.
To seriously talk about the filibuster, we need to understand what it is and avoid falling back on the most pervasive myths about it.
The filibuster was never part of the Senate’s origins, but it’s probably part of its character.
Like all the rules of the Senate, it’s changed with time.
And we can change it again.