I Am a Democrat, but I Oppose Filibuster Reform
2021 is a year of change in America. Joe Biden recently assumed presidential office, and the Democratic Party now holds a narrow majority in the evenly divided Senate, with Vice President Kamala Harris standing ready to cast the tie-breaking vote. As Democratic Senators seek to take advantage of their new majority and to maximize their legislative capacity, many of them have turned their attention to the filibuster–a parliamentary procedure used in the Senate. The filibuster is an action used to extend debate in order to delay or prevent a bill, resolution, amendment, or other measure from being voted upon. Some Democrats have called for filibuster reform – a few, even for abolition – to make it more difficult for Republican Senators to obstruct the passage of Democrat-sponsored legislation. I am a Democrat, and although I recognize that filibuster reform would allow the Democratic Party to promulgate President Biden’s legislative proposals more quickly and effectively, I believe that the filibuster is an integral part of the Senate’s role because it encourages deliberation, compromise, and moderation. Although 2021 may be a year of change, the filibuster must be maintained.
The Senate’s 22nd rule, adopted in 1917, establishes a procedure called “cloture,” in which Senators vote on whether to end a filibuster. Originally, the rule required a two-thirds vote to end debate. However, in 2013, the Democratic Party, frustrated by Senate Republicans’ frequent use of the filibuster to block President Obama’s judicial appointments, decided to amend the rule. The Democratic Majority Leader, Senator Harry Reid, of Nevada, declared that it was “time to get the Senate working again”; that it was time to move past parliamentary roadblocks. Using the “nuclear option,” Senate Democrats amended the cloture rule: henceforth, the Senate would only need a simple majority of 51 (rather than 60) votes to end debate. Without the nuclear option, Democrats would not have been able to confirm many of President Obama’s judicial nominees. This amendment to the cloture rule shows how highly debated the filibuster has been in recent years. In any event, the survival of cloture, despite whatever reforms are pursued, is crucial because it will ensure that the filibuster’s power can be modulated if it is abused or obstructs democratic ideals.
Article I of the Constitution establishes the legal foundation for the filibuster because it permits the Senate to “determine the rules of its proceedings” [1]. At first glance, it appears that the Constitution allows the Senate to establish rules that promote institutional deliberation and delay. However, a deeper analysis of the constitutionality of the filibuster is challenging and raises many questions. For example, one may wonder what limits there are on the Senate’s ability to establish its own rules: Article I is vague and does not state to what extent the Senate is allowed to decide them. Moreover, the filibuster’s tendency to alter the balance of power within the Senate and between the Senate and the executive and judicial branches raises other constitutional questions. How much power should the minority or majority party in the Senate have, according to the Constitution? Does the filibuster contradict what the Constitution says or implies about the distribution of power among branches?
When considering these questions, it is important to consider historical precedent. Even the earliest Senators prolonged debate for legislative gain. During the first session of the Senate, in September 1789, Pennsylvania Senator William McClay noted that the “design of the Virginians...was to talk away the time, so that we could not get the bill passed” [2]. Throughout American history, the practice became more popular, and around the middle of the 19th century, it officially became known as “the filibuster.” As Senators filibustered more frequently and the Senate’s size and agenda expanded during the late 19th and early 20th centuries, the filibuster became a profound institutional disruption. Some Senate leaders even debated abolishing the practice altogether. Minority party Senators knew that they could use the filibuster for legislative gain by forcing the majority party to make crucial concessions. Throughout the 20th century, many Senators pressed for reform, and during his presidency, President Woodrow Wilson adamantly urged reform, leading to the adoption of the Senate’s cloture rule in 1917. This precedent shows how the filibuster has always been part of America’s legislative heritage.
Today, Democratic Senator Joe Manchin of West Virginia is one of many Democrats who has expressed willingness to reform the filibuster. Manchin stated that he believes the filibuster should be made more “painful” for the minority to use, potentially by “[making Senators] stand there and talk” [3].
While some Senators see the filibuster as manipulative and partisan, I believe that it is necessary to foster bipartisanship and compromise. Without the filibuster, the majority party’s most polarizing policies would pass without negotiation. It would cause policies to be unstable and to be reversed more often. Moreover, the majority party would be capable of passing sweeping legislation and of implementing profound changes without any meaningful check. There should be no room for tyranny of the majority in American politics. While a three-fifths supermajority requirement to invoke cloture is no foolproof measure, it certainly minimizes the probability that the majority party will become tyrannical. Democrats want reform now but, interestingly, they did not a few months ago. They will most certainly regret having eliminated the filibuster if and when they lose their majority in the Senate. The filibuster needs to be maintained to promote bipartisanship and to hinder the majority from overpowering the minority.
I am a Democrat, but I oppose recent calls for filibuster reform. Although I hope to see President Biden’s legislative agenda passed, I recognize the importance of bipartisan compromise in the legislative process. Incidentally, President Biden does, too: White House Press Secretary Jen Psaki recently told reporters that the President’s "preference is not to get rid of the filibuster" and "not to make changes to the filibuster rules" [4]. President Biden wants to protect the filibuster even though the rule makes it more difficult for him to accomplish his own policy goals. 2021 is a year of change in America, but the filibuster must be maintained.
References
[1] U.S. Const. art. I, § 5.
[2] “About Filibusters and Cloture : Historical Overview.” U.S. Senate: About Filibusters and Cloture | Historical Overview, 3 Mar. 2021, www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm.
[3] Niedzwiadek, Nick. “Manchin Wants to Make Filibuster 'Painful' to Use.” POLITICO, POLITICO, 8 Mar. 2021, www.politico.com/news/2021/03/07/joe-manchin-filibuster-senate-474197.
[4] Quinn, Melissa. “Senator Joe Manchin Signals Willingness to Reform Filibuster.” CBS News, CBS Interactive, 8 Mar. 2021, www.cbsnews.com/news/joe-manchin-on-ending-the-filibuster/.