Elizabeth Warren has the Senate's gridlock problem all wrong

(Editor's Note: This piece first appeared in the Washington Examiner on February 27, 2020.)

Elizabeth Warren wants to end gridlock in the Senate, and she believes eliminating the filibuster is the way to do it.

In South Carolina’s presidential debate, Warren asserted that Democrats such as Bernie Sanders were empowering Republicans to block the next president’s agenda by supporting the filibuster. She argued that, in doing so, they were giving Republicans a veto over legislative priorities such as gun safety legislation and comprehensive immigration reform. Warren declared that Democrats would be unable to get their agenda through the Senate as long as they are unwilling to eliminate the filibuster. 

During the debate, Pete Buttigieg joined Warren in opposing the filibuster. He pointedly asked Sanders, the Democratic front-runner, to square his support for the filibuster with his promise to start a revolution in the nation’s capital if elected president. Like Warren, Buttigieg appears to believe that the filibuster causes gridlock and that doing away with it will usher in an era of legislative productivity for Democrats.

Notwithstanding the persuasive simplicity of their argument, Warren and Buttigieg overstate the ability of a minority party to block a determined majority from enacting its agenda using the filibuster. In doing so, they overlook the underlying reason why the Senate is mired in gridlock.

That is, senators are unwilling to exert the effort required to legislate successfully on controversial issues.

The Constitution empowers a majority (typically 51 senators) to determine the Senate’s rules. Specifically, the Rules and Expulsion Clause stipulates, “Each House [of Congress] may determine the Rules of its Proceedings.” Those rules have long required a three-fifths majority (typically 60 senators) to end a filibuster on legislation and an even greater two-thirds majority (typically 67 senators) to end a filibuster on proposals to change the Senate’s rules.

Warren and Buttigieg want to eliminate those supermajority requirements, thereby depriving a minority of the Senate’s members of the opportunity to prolong debate over the majority’s objections. They argued that doing away with the filibuster will end gridlock in the Senate and, by extension, Congress. Implicit in their position is the assumption that the actions of a minority of senators are able to neutralize the actions of a Senate majority. According to their logic, gridlock happens when a minority does not want to cooperate with the majority and instead filibusters, or blocks, the majority from legislating.

Yet that is impossible. Absent a veto on one side, opposing actions cancel each other out only when they are evenly balanced. In all other instances, the actions of the stronger, or larger, group of senators will eventually overwhelm the actions of the weaker, or smaller, group. In the Senate, the majority and minority parties are, by definition, unevenly matched. The fact that the majority party has more members than the minority party is what makes it the “majority” party in the first place. Given this, the only way to level the playing field between the two parties is to give the latter a veto over when the former acts.

But the filibuster is not a veto. It does not automatically level the playing field between the majority and minority parties. It merely grants a senator (or senators) the opportunity to speak for as long as he or she is able. Using the filibuster to obstruct the majority on a systematic basis requires minority-party senators to exert Herculean effort to succeed or majority party senators to believe their minority-party colleagues are willing and capable of doing so. 

The filibuster cannot cause gridlock in a real legislative debate because the majority and minority parties are unevenly matched in terms of the effort their members are willing to exert to win. Whichever group that prevails, in the end, is, by definition, the group with the most senators. In debates where the minority party prevails, its members merely altered the terms of the debate such that a majority of senators were unwilling to do what it takes to win.

In such instances, a minority of senators changed the balance of power, thereby depriving the majority party of a majority of senators.

Instead of calling on their fellow Democrats to eliminate the filibuster, Warren and Buttigieg should call on them to legislate. Senators’ unwillingness to do so, more than any other factor, explains why the Senate is mired in gridlock.