Speaking up for the Filibuster

(Editor’s Note: This piece first appeared in Law & Liberty on 17 August 2020.)

The filibuster is one of the great bugbears of American politics. Democrats and Republicans have routinely blamed the infamous practice when the Senate fails to act on their policy priorities. In both parties, senators have denounced the filibuster as illegitimate when used by their colleagues to slow action on favored presidential nominations. And Democratic and Republican majorities have both circumvented the Senate’s rules in recent years to advance those nominees by limiting senators’ ability to filibuster them.

Former President Barack Obama recently referred to the practice as a relic of the Jim Crow era to make abolishing it easier. Speaking at the funeral of John Lewis, Obama called on the Senate to honor the civil rights icon and former congressman by ending the filibuster, if necessary, to pass legislation like the John Lewis Voting Rights Act.

The symbolism of Obama’s plea amidst the nation’s current racial unrest is especially striking. America’s first black president calling on senators to fight racial injustice by abolishing the filibuster in his eulogy for one of the leading figures of the civil rights movement makes it harder for the filibuster’s proponents to defend the practice. Cast in such terms, the filibuster becomes the parliamentary personification of racism in America.

Yet the assumptions underlying these depictions of the filibuster are deeply flawed. While southern segregationists filibustered civil rights legislation during the Jim Crow era and the Senate has struggled to legislate more generally in recent years, the filibuster is incidental to both phenomena. The filibuster itself did not make Jim Crow segregation possible. It is not the cause of the Senate’s current gridlock. Consequently, abolishing it will not compensate for decades of racial discrimination. It will not automatically create the conditions for senators to pass legislation combating racial injustice. Instead, the current debate over the filibuster distorts the real legacy of Lewis’s career and the movement he helped lead.

Understanding the Filibuster 

Implicit in Obama’s critique of the filibuster is the assumption that Senate majorities cannot pass legislation over the minority party’s objections. This is because the Senate’s rules do not empower a majority to end debate on a bill as long as a senator wants to speak on it. Obama’s Jim Crow suggestions notwithstanding, the Senate first permitted unlimited debate on legislation and nominations in 1806. A consequence of that decision was to empower a minority of senators to filibuster or block legislation supported by the majority as long as those senators were willing to speak on the Senate floor. In 1917, the Senate adopted a rule to end a filibuster by invoking cloture on a supermajority vote.

The ability to end debate by invoking cloture has altered how today’s Senate does business. Instead of trying to wait-out filibusters as in the past, today’s majorities try to invoke cloture. Consequently, a filibuster at present permits a minority of senators to block a final vote on a bill because the Senate’s rules require more votes to invoke cloture (typically 60) than to pass legislation (typically 51).

But the filibuster was not always understood to operate in this way, even after the Senate adopted the cloture rule in 1917. In the past, the filibuster helped to facilitate negotiation and compromise among senators. That is why legislation approved by the Senate often included minority-favored provisions in addition to those supported by the majority. However, today’s standard view is that rising polarization and partisanship have made it impossible for senators to compromise with one another. Such forces increased the distance between Democrats and Republicans and, in the process, changed fundamentally the nature of politics inside the Senate. As the gap between the two parties widened, the filibuster morphed from a source of leverage that individual senators could use to facilitate compromise into a veto that Senate minorities could use to block legislation favored by the majority.

But the filibuster is not a veto. Consequently, it can never level the playing field between the majority and minority parties in a debate. Instead, the filibuster merely grants a senator (or senators) the opportunity to speak on the Senate floor for as long as possible. Using it to obstruct the majority on a systematic basis requires that minority-party senators be willing to expend considerable effort to succeed. The filibuster cannot cause gridlock in a debate of reasonable length because no two sides in a legislative debate are evenly matched in terms of their members’ effort. One group of senators must always prevail at the conclusion of a debate. In situations where the minority party prevails, its members successfully altered the terms of the debate such that a majority of senators were unwilling to expend the effort required to prevail in it.

Today’s opponents of the filibuster share a distorted view of the Senate. They see it as a factory whose purpose is to produce legislative widgets.

Understanding why the filibuster is not a veto requires a closer examination of how the procedure operates. Of course, a senator may temporarily delay their colleagues from voting by speaking on the floor. However, a senator cannot prevent them from voting in perpetuity, strictly speaking, because they cannot speak indefinitely. This is because of the physical and opportunity costs filibustering senators must bear and the procedural limitations on senators’ ability to filibuster in the Senate’s existing rules and practices. When a senator is no longer able to speak, they have no choice but to yield the floor. At that point, the Senate votes on the underlying question unless another senator seeks recognition and then speaks for as long as possible. While the length of the Senate’s business delay is proportional to the number of senators who participate in a filibuster, there is no point at which that business gets delayed indefinitely since individual senators can only speak for a finite period. When no senator seeks recognition in a debate, the Senate must vote.

The cloture rule leads today’s Senate majorities to forgo such effort-intensive activities to end filibusters. When combined with the two-track system, the rule allows senators to process other business while waiting for cloture to ripen for a vote. But the majority party does not have to use the two-track system or the cloture rule to end debate on a measure. And the Senate’s present gridlock indicates that senators are not processing other business while they wait for cloture to ripen on a bill. If a Senate majority or supermajority wants to end a filibuster, requiring the minority of senators who do not want to end debate to hold the floor and speak is just as effective in overcoming their filibuster as invoking cloture.

The majority leader doesn’t call the minority’s bluff and force its senators to filibuster because doing so takes effort on the majority’s part. It also injects a degree of free-wheeling decision-making into a process that the majority leader would much rather control. Finally, forcing unsuccessful cloture votes gives the majority leader an opportunity to attack the minority party as obstructionist during election season.

This is precisely how the Senate legislated before it adopted the cloture rule to end filibusters in 1917. Throughout the 19th century, Senate majorities routinely passed significant legislation over a minority’s objections in the absence of a rule to end debate. The filibuster did not operate like a veto because senators understood that filibustering was a costly activity. A minority of senators could not prevent the majority from acting as long as the latter’s members were willing to expend the effort required to legislate. The only exception to this general rule was at the very end of a two-year Congress when the limited time left to legislate meant that filibustering’s physical costs were lower. Yet even in such circumstances, it is nevertheless misleading to suggest that a minority vetoed the majority’s decision to act.

The Job of the Senate

Today’s opponents of the filibuster share a distorted view of the Senate. They see it as a factory whose purpose is to produce legislative widgets. Senators become, in their minds, craftsmen who apply technical knowledge to make those widgets. Like all production processes, their work follows a pre-existing blueprint designed by someone else in another place and time. From Obama’s perspective, the consequence of debate inside the Senate is to give a voice to people with whom he disagrees and to delay passage of legislation he deems essential.

Abolishing the filibuster will not, by itself, end the Senate’s current dysfunction. This is because politics is not a production process. The Senate cannot be understood in terms of the organization of the political means of production. And senators cannot be conceptualized accurately as craftsmen or workers on a production line. Consequently, outcomes in the Senate cannot be known in advance. Instead, they are determined by individual senators participating in an activity that takes place, for the most part, inside the Senate. Legislation passes there due to the decisions those senators make as they act and react to one another throughout a debate.

Obama’s critique of the filibuster is, ironically, at odds with how John Lewis understood politics. He embraced the give-and-take of democratic politics. In an essay written shortly before his death, Lewis acknowledged, “Democracy is not a state. It is an act.” He noted that “voting and participating in the democratic process are key.” The civil rights movement he helped lead aimed to increase black Americans’ ability to participate in politics outside Congress. And his career on Capitol Hill serves as a testament to the importance of black Americans participating in politics inside Congress. To the extent that the filibuster empowers all senators to speak on the Senate floor for as long as they are able, it enhances their ability to give voice to the concerns of black Americans outside the Senate and to fight for policies to address those concerns inside it.

The filibuster is not inviolable. Senators are entirely within their rights to limit it or abolish it entirely. However, current arguments in favor of doing so are misleading. Underpinning them is the implicit desire to do away with politics inside the Senate altogether. The filibuster empowers individual senators to participate in the legislative process on behalf of their constituents. It is not a veto. It does not cause gridlock.

Consider the 1953 description of the legislative process by political scientist Bertram Gross. According to Gross, compromise agreements arise out of the “development of the group struggle itself, for the vicissitudes of this struggle create the conditions that promote cooperation and make it possible.” In short, the process of disagreeing makes agreements easier to reach. That process also produces stable outcomes by reconciling losers in a debate to the fact that they lost. For example, Richard Russell led the Senate’s filibuster to stop the Civil Rights Act of 1964. But Russell also accepted the outcome of that debate as legitimate. He urged his fellow southerners to do so as well. 

Contrary to Obama’s plea, Lewis’s legacy is best honored by ensuring that all senators have the ability, in Lewis’s words, “to stand up, speak up and speak out.”