Professor Bryan H. Wildenthal, Professor Emeritus at Thomas Jefferson School of Law, San Diego, explains why the Senate filibuster has an ugly history, is a fake perversion of what it used to be, promotes partisan gridlock, distorts our constitutional structure, and worst of all threatens to destroy public confidence in our ever-more-fragile democracy...
Judging by much of the debate over the Senate filibuster rule, you’d think it was some honorable tradition worth keeping — “an elegant [political] weapon of a more civilized age,” as Obi-Wan Kenobi described the lightsaber to Luke Skywalker in the original Star Wars. Not so. The filibuster is a dangerous relic with a deeply destructive history. No icon was ever so undeserving of its sacrosanct mystique.
The modern Fake Filibuster, as it should be called, is a hollow mockery of what it used to be. In its current form, it requires most legislation in Congress to obtain a 60-vote supermajority in the Senate. But it’s been riddled with arbitrary loopholes that hardly any voters (and I suspect few senators) really understand — like the complex and baffling “budget reconciliation” exception, which allows certain tax and spending bills to pass with a simple majority.
It bears no resemblance today to the lonely stand of Jimmy Stewart as an idealistic new senator in Mr. Smith Goes to Washington (1939), a Hollywood classic, still surprisingly relevant and worth watching. Long gone are the days when filibustering senators had to hold the floor for hours without bathroom or meal breaks. As Burt Neuborne and Erwin Chemerinsky aptly note, by merely announcing a filibuster, any senator today can kill most proposals not supported by 60 votes while “stay[ing] home in bed.”
It has no basis whatsoever in the Constitution. Professor Randy Barnett, a thoughtful and respected libertarian-conservative, claims that it’s “a defining characteristic of our constitutional structure.” While we disagree on many things, I share some of Barnett’s principled stances, including opposition to packing the Supreme Court. But he’s flat wrong on the filibuster, especially under an originalist and textualist approach to constitutional law.
No such rule existed during the Senate’s first 17 years. The text of the Constitution (Art. I, § 5) is plain: “Each House” of Congress may freely “determine the Rules of its Proceedings” and “a Quorum to do Business” is defined as “a Majority of each.” Rulemaking, legislation, and confirmation of presidential nominees require a mere majority of a quorum present and voting — in pointed contrast to seven provisions expressly imposing a two-thirds supermajority for various purposes:
Sen. Kyrsten Sinema (D-AZ), sadly, is one of the Fake Filibuster’s few remaining defenders among Senate Democrats (full disclosure: I contributed to some of her past political campaigns). The mantra of bipartisan “unity” is nothing new for Sinema, one of the most thoughtful and genuinely independent-minded people in politics. She has taken the idea seriously and practiced it diligently for a long time, as indicated by the title of a book she wrote more than a decade ago as an obscure state legislator, Unite and Conquer.
But the filibuster does not actually advance bipartisan unity. It leaves the parties as bitterly divided as ever. Most often it merely ensures that nothing gets done.
It’s important, of course, to seek unity and consensus on matters essential to the functioning of our democracy — like respect for facts, truth, the rule of law, and the integrity of our elections. As President Biden has repeatedly said, on the campaign trail and in his eloquent Inaugural Address, we should strive to engage our political opponents as respected neighbors, not enemies. We must all operate in good faith within the same Constitution.
But it would be absurd to equate “unity” with agreement on most policy issues or to suggest the only legislative proposals that should pass are those with wide bipartisan support. Given honest political differences, that would be a recipe for endless gridlock — a disaster given the critical needs we face today. Worst of all, it would dangerously undermine the already frayed confidence of Americans of all political views in the basic ability of our democratic and republican political system to work.
A new book by Professors William Howell and Terry Moe — Presidents, Populism, and the Crisis of Democracy, discussed in a must-read column by Ezra Klein — warns that populist demagogues like the former President Trump “feed on ineffective government.” They offer a superficially appealing alternative to democracy: that “I alone can fix it,” by authoritarian rule.
Republicans have often taunted Democrats that “elections have consequences.” When voters grant a party “trifecta” control of the White House and both Houses of Congress, they expect it to get things done and enact most of its program.
At the same time, no one should demonize Republicans as enemies of bipartisan unity, simply because they vote against policies with which they sincerely disagree. That is their right. If Democrats cannot muster a majority to pass something, they should buckle down and work harder at bipartisan outreach, or move on to the next issue.
But no party should apologize for using the majorities it wins to enact the policies on which it campaigned. Let the voters judge the results at the next election. It is the artificial obstruction of the Fake Filibuster that feeds justified resentment over partisanship.
President Biden and others have suggested the filibuster is essential to protect vulnerable minorities, by preserving programs like Medicaid or civil rights laws. I hesitate to contradict anyone with the president’s decades of Senate experience, but there is little if any historical evidence to support this notion. It is contradicted by recent history with which Biden (of all people) should be very familiar. The filibuster, especially in its fake modern form, does not provide “protection.” It is the problem!
Historically, the filibuster was often weaponized to make the Senate the graveyard of progressive proposals, especially relating to civil rights. It was used a century ago to block anti-lynching bills in the Senate. It took many years of protesters battling police dogs and firehoses, peaceful marches met by White Supremacist violence, the courage and persistence of activists like the late Rep. John Lewis (D-GA), the Rev. Dr. Martin Luther King Jr., Fannie Lou Hamer, and so many others, the emotions aroused by the assassination of President John F. Kennedy, the legislative genius and powers of persuasion of President Lyndon B. Johnson — and a filibuster-proof supermajority in the Senate — to finally, at long last, pass the Civil Rights Act of 1964.
Yet somehow, the Fake Filibuster has never posed much of an obstacle to rightwing conservatives in achieving their legislative priorities. Most often, they simply want to slash taxes on corporations and the wealthy. The “reconciliation” loophole has conveniently and repeatedly enabled them to do that by simple majority votes.
Professor Barnett also defends the filibuster as essential to protect minority rights. He claims “ending it will lead to a fundamental change in the norm that the Senate provides a bipartisan check on the partisanship of the House,” a majoritarian body apportioned by population. But the Senate itself, its very existence and structure, provides a more than adequate check on majoritarian rule. Any bill passed by the House must also clear the Senate (the crucial protection of bicameralism). And the Senate is guaranteed, beyond the reach of any constitutional amendment (see Art. V), to afford equal representation for every state, large and small. Even right-wing states with tiny populations, like Wyoming, are guaranteed the same number of senators as liberal behemoths like California, with more than 60 times as many people. Tiny liberal Vermont has two senators, just like right-wing Texas with more than 40 times its population.
Even without the filibuster, states with far less than a majority of the national population (currently as little as 18%) can control the Senate and block any legislation they don’t like. Nothing in the text or history of the Constitution, or any political theory worthy of respect, justifies the further leap of giving a minority of 41 senators, potentially representing even smaller fractions of the people, the permanent power to obstruct.
The Fake Filibuster severely aggravates the Senate’s current bias against Democrats, who are concentrated in fewer states with larger populations. The 22 least populous states carried by Trump in 2020 contain a grand total of only 24% of the American people. But they are represented by 44 senators: 42 Republicans, all very right-wing except for Lisa Murkowski (R-AK), and just two Democrats, Jon Tester (D-MT) and Joe Manchin (D-WV). Thus, even a bipartisan supermajority representing 76% of the nation could be powerless to overcome a small reactionary minority.
No wonder former President Obama, like many others, has suggested bypassing the filibuster at least to pass crucial voting rights legislation. Obama’s view is doubtless informed not only by his own Senate experience, but by the history of the health care law he signed as president, the greatest progressive legislative achievement in a generation. President Biden should also pay heed to that history, in which he was so intimately involved.
Obamacare was pushed over the finish line in 2010 with an assist from the “reconciliation” exception. But core elements of the law required overcoming the filibuster. The law was severely limited and distorted as a result. Given Democratic acceptance of the rule in 2009–10, they could never have enacted even the flawed version of Obamacare that passed without the almost miraculous 60–40 Senate majority they briefly obtained (and will almost certainly never see again).
Yet somehow, Republicans were able to target Obamacare for total repeal in 2017 despite holding a mere 52–48 Senate majority. They came frighteningly close several times, also threatening to destroy Medicaid as we know it. It wasn’t the Fake Filibuster that protected Obamacare and Medicaid during 2017. It was three senators: Susan Collins (R-ME), Lisa Murkowski (R-AK), and the late John McCain (R-AZ), with his memorable thumbs-down on the crucial 51–49 vote. But sadly, that wasn’t the end of the story. All three of those supposedly moderate Republicans joined in ramming through Trump’s 2017 tax cut (a massive giveaway to the rich) by razor-thin partisan votes, exploding the deficit (exposing Republicans as brazen hypocrites on that issue) and undermining Obamacare by eliminating the tax penalty “mandate” at its heart.
How did Republicans do all that despite the Fake Filibuster? Once again, they exploited the reconciliation loophole. Are you getting the idea by now there’s something very wrong with this picture?
It’s hard to understand why Democrats don’t just hold a clean, simple, up-or-down repeal vote on Trump’s 2017 tax law. It passed by reconciliation, so can’t it die the same way? At a single stroke, that would extend a lifeline to Obamacare and undo one of the central and most damaging parts of Trump’s legacy. If concerned about the economic impact during the Covid pandemic, they could easily provide for the repeal not to take full effect for months or even years. They could pass companion legislation the next day, counterbalancing repeal to benefit middle and lower-income taxpayers — and dare Republicans to oppose that.
Democrats were severely punished in the 2010 midterms by voters angry over the Obama administration’s perceived failure to do more (and quickly enough) to improve their well-being. Democrats had more than enough votes in 2009–10 to pass reforms as big and bold as they wanted, and as the country needed — had they not chosen to accept the self-defeating straitjacket of the filibuster.
President Biden clearly understands the enormity of the stakes today. In addition to his proposed $1.9 trillion Covid relief package (which may pass via reconciliation), he has ambitious plans in areas ranging from climate change, the environment, and clean energy, to health care (fixing and bolstering Obamacare, at a minimum), voting rights, criminal justice, immigration, and many more.
If Democrats are serious about achieving any of these goals, they must not meekly surrender, yet again, to the Fake Filibuster. It has not only a current geographical bias against Democrats, but an inherent long-term bias against Democratic priorities, which typically involve new legislation and reforms. Republicans are often content merely to preserve the status quo, block reforms, cut taxes, and undermine government programs. The Fake Filibuster has suited their priorities well. Why should Democrats keep playing this rigged game?
Yes, there’s always a risk that Republicans may regain (years in the future) the trifecta of federal power. But if and when that happens, they will probably ditch the filibuster anyway if they find it blocking their agenda. Democrats have nothing to gain, and a nation to lose, by clinging to it now.
Some Democrats lament their decision to partly curtail the filibuster in 2013 with regard to executive and judicial confirmations (apart from the Supreme Court). But does anyone in their right mind think Sen. Mitch McConnell (R-KY), the wily Republican leader, would not have done that anyway in 2017 to ram through Trump’s judges? If Democrats had chosen to handcuff themselves in 2013, Obama’s entire second term would have been sabotaged and McConnell and Trump would merely have had that many more judicial vacancies to fill.
Democrats did, after all, restrain themselves in preserving the filibuster for Supreme Court nominees, only to see McConnell and the Republicans stonewall Obama’s nominee to replace Justice Scalia in 2016, and then blast through the filibuster in 2017 to fill the seat themselves. Am I the only one reminded of those Peanuts comics with Lucy (McConnell) repeatedly yanking the football away from the Charlie Brown Democrats?
Americans are suffering now. Democrats can pass urgent legislation now that will, at the very least, remain in force and help people for the next four years. They can show voters that their program — and democracy itself — can actually work and make a difference. That may reduce the chance that voters will grant Republicans the federal trifecta any time soon again. Democrats may reasonably hope to retain for many years at least the presidential veto or one House of Congress, to protect their legislative achievements.
I’m a realist. Complete abolition of the filibuster does not appear likely right now. Democrats don’t appear to have the votes. But there are many intermediate options that have not been ruled out. Restore the classic (genuine) filibuster, as Neuborne and Chemerinsky argue. Make it far more difficult and politically costly. Force the minority onto the floor to defend their obstruction without bathroom or meal breaks. Make it clear that a filibuster will shut down all other Senate business. Expand the reconciliation exception to encompass a few critical areas reflecting progressive priorities for a change — such as legislation dealing with voting rights and elections, recently threatened so severely.
The costs of not acting boldly will be terrible indeed. America will suffer not just economically and in terms of health, civil rights, and so much more. Concentrate your minds on the prospect of Congress being captured next year by right-wing extremists who already tasted blood in their recent efforts to overthrow our democracy. Think about an extreme right-wing populist — more cunning and skillful than Trump — seizing the presidency in 2024. For the sake of the republic, the Democratic Party, the only responsible and law-abiding major party left in America, needs to give itself a fighting chance to earn solid victories from American voters in 2022 and 2024.
American democracy, despite President Biden’s hopeful vision, is far from “prevailing.” It barely survived the three months from November 2020 to January 2021. Tens of millions have lost faith in it — yes, many due to deliberate fanning of falsehoods and hatred, but many from understandable frustration as well. It may not survive four more years of frustration, filibuster, and failure.
We have been warned.
Bryan H. Wildenthal, an expert on constitutional history, is Professor Emeritus at Thomas Jefferson School of Law, Visiting Professor at the University of San Diego School of Law, and an attorney admitted to the Bar of the U.S. Supreme Court. Most of his scholarly works may be freely accessed here.
Suggested Citation: Bryan H. Wildenthal, The Fake Filibuster: A Clear and Present Danger to Democracy, JURIST – Academic Commentary, February 8, 2021, https://www.jurist.org/commentary/2021/02/bryan-wildenthal-filibuster-democracy/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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