Someone reading my blog asked what I thought about the filibuster. As I have said in other blog posts, I am invested in good process, not good outcomes. But both defenders and opponents of the filibuster are staking their position on outcomes—the kind of legislation that is likely to result from ending the filibuster or modifying it. Perhaps it is time to reflect on the filibuster as a process issue.
The process argument depends on whether you think senators should represent states or people. Every other political entity from the U.S. House of Representatives to your local school board or county council is required by law to apportion seats and draw lines so that each person elected to an office represents about the same number of people as his/her fellow representatives. But not the U.S. Senate. California, Florida, and Texas have two senators each to represent their combined 100 million people. So do Alaska, Wyoming, and Vermont, for their combined not quite two million people. One person, one vote or one state, two votes, regardless of population? Which is more democratic with a small d?
In 2020, Republican candidates for the Senate won only 43.5% of the popular vote, compared to 56.5% for Democrats, but Democrats only gained their barest of majorities by a winning double-header Senate runoff in Georgia and electing a Democratic Vice-President to preside over the Senate and break ties. In the last 30 years, the Republicans have controlled the Senate in 18 of those years, even though they garnered the votes of a majority of the electorate for senators in only one of those 16 elections.
The argument for the filibuster is that it protects minority rights from the tyranny of the majority. The argument against the filibuster is that it hobbles the ability to legislate, resulting in a tyranny of the minority. It’s an argument that dates back to the Constitutional convention of 1787 where smaller states demanded protection in exchange for strengthening the authority of the central government.
So, what is the passionately moderate solution? In the past decade or so, the filibuster rule has been modified. It no longer applies to judicial nominations or cabinet and sub-cabinet appointments requiring Senate confirmation. In each two- year session of Congress, the majority party has two chances to pass a bill containing budget matters by a simple majority, which is the way the 2021 COVID relief bill was passed.
What else could be done? One option is to reduce the requirement to end debate from 60 percent to 55. That change wouldn’t help the majority party much now with a 51-50 division, but it might make it possible to attract a few Republican votes to get some bills through. Another option on the table is to require the person invoking the filibuster to observe the old requirement to talk continuously, which requires a lot of stamina. Even the late Senator Thurmond only managed 24 hours. Perhaps another category or two could be carved out to be exempt from the filibuster rule besides regulation and appointments. The leadership might be able to persuade West Virginia Senator Manchin to use his power constructively to move legislation closer to the muddled moderate middle as the price of his vote for ending the filibuster. Even without the filibuster, the Democrats would have to have his vote.
Other options are rather heavy handed and difficult to bring about. Consider some radical suggestions. Amending the Constitution to change the allocation of Senate seats. Splitting California into two states and granting statehood to DC and Puerto Rico (which would have to get through the Senate! Beware: the other party can play that game too, splitting states to create more senate seats!) Or a less radical suggestion: make a case to the electorate in 2022 to consider in voting for senators that the filibuster is an obstacle for much proposed legislation with strong public support.
If you were in charge, what would you do?