Being Right: A Constitutionalist’s Perspective on the Filibuster

Nathan Biller, Staff Writer

On Friday, March 26, President Joe Biden stated at a White House press conference that he would be willing to reform the Senate filibuster over accusations of Republican “abuse” of the procedure in blocking Democrat legislative objectives. He proposed substituting it with a talking filibuster, which would close debate when the senator(s) stop talking. Biden has signaled that he would be willing to go further in curbing the power of the filibuster.

The filibuster has long existed in the United States since its creation by Vice President Aaron Burr in 1806, and has predominantly been used as a means by the Senate minority to halt legislation, wherein a Senator will extend debate indefinitely unless stopped by supermajority (currently a three-fifths vote), as outlined in Senate Rule XXII. Recently, major figures within the Democratic party have claimed the filibuster to be the Republicans’ unfair weapon and advocated for its reform, if not abolition.

Just as the 1806 rule change and subsequent creation of the filibuster was a radical change in the nature of the Senate and its behavior, so too would be its elimination. We need to ask ourselves what sort of precedent the filibuster has set, what its removal would do and which is most compatible with and beneficial to the principles of our government.  In this case, it is necessary to determine if the filibuster’s defense against a “tyranny of the majority,” as was feared by the Founders, is successful, and if it provides the best course for legislative proceedings on controversial bills.

First, it is important to establish the necessity of minority protections. A common platform of the filibuster’s most progressive critics is the advocacy of popular rule, evident not just in calls to eliminate the filibuster but also the electoral college, as has been called for by countless figures such as 2016 runner-up Hillary Clinton and a plethora of 2020 Democratic primary candidates such as Bernie Sanders, Elizabeth Warren and Pete Buttigieg. These groups often regard the need for direct democracy and popular rule as self-evident, with the standard refrain to attempts at limiting the power of the majority.

This said, serious critiques are levied against majority rule since the U.S. was founded. The Founding Fathers did not wish for a system in which the interests of an arbitrary majority were mutually exclusive to those of the rest of the nation, serving as a basis for such institutions as the electoral college and the Senate itself. James Madison argued in Federalist no. 51 that a principal goal of the Constitution is “creating a will in the community independent of the majority that is, of the society itself.” Furthermore, Hamilton and Madison, who shared the pseudonym “Publius,” argued repeatedly of the danger of factionalism in the United States, which they believed to be facilitated by majoritarian rule. Once upon a time, President Biden himself lauded these protections of the minority as “the genius of our constitution and representative government” when defending the filibuster against then-Majority Leader Bill Frisk in 2005. In his own words, “a majority may govern but it does not rule.” For these reasons among more than can be summarized in a single article, the Founders were extraordinarily wary of the majority.

Meanwhile, outside of the Founding era, proponents of majority rule must justify the infallibility of the majority against historical incongruencies. For example, the popular vote going to Richard Nixon —one of the presidents most abhorred by these very groups — in the greatest landslide of any election post-World War II, and far more egregious examples from democracies abroad.

Moving on, it is necessary to analyze the extent to which the filibuster defends the minority. The filibuster is often regarded by its proponents as a solution to undue majoritarian power in the Senate by requiring a supermajority with broader consensus to pass a piece of legislation in the absence of compromise.  his was a point argued by former House Speaker Paul Ryan during his seminar hosted by the Colgate College Republicans on Thursday, March 25. However, considering the rarity of a filibuster being broken with an agreement, it is debated how successful it is at sparking compromise. Colgate Professor Sam Rosenfeld, a PhD of history and an instructor on various political institutions and developments in the United States, comments on this saying, “The proof is in the pudding. I don’t see a lot of compromise and moderate legislation passing as a consequence of this.” Professor Kevin Walker, a PhD in Politics and the instructor of courses on Congress and public policy at Colgate University, also levies this criticism, granting instead that “maybe anticipation of the filibuster does, and that’s really what shapes so much of the Senate today. It’s not the fact that Senators do filibuster, it’s that they might.” Walker also notes that the filibuster could be argued to fulfill the idea of a “cool and deliberate sense of the community” as is prescribed by James Madison in Federalist no. 63, though he conversely states “If you want a cool and deliberate sense, does that mean handing your opponent a weapon to be pointed at you?  No, it means establishing trust.” He highlights the deliberative nature of the Senate as one of the characteristics that lets it “rise above the raucous nature of the house” and argues that this should be accomplished through a medium that better promotes “mutual respect and constructive disagreement” than the predominantly bill-killing filibuster.

Many on the political left have condemned the filibuster on the premise of a wholly separate discussion, arguing it to be a “relic of Jim Crow,” a term coined by President Obama and defended by Joe Biden on Saturday. The argument essentially boils down to the idea that the filibuster is inflexibly tied to and perpetuates amoral platforms. The filibuster itself far precedes the era of Jim Crow and at its earliest conception has been applied well outside of issues on civil rights. The first filibuster in the United States, in fact, was employed in 1837 by a group of Whig Senators (generational counterparts of liberal Democrats) to protect a censure against President Andrew Jackson.

Professor Rosenfeld points out that “In the middle of the 20th century, it is absolutely true that the thing [the filibuster] was used for most regularly and systematically was opposition to anti-lynching laws and anti-segregation, anti-Jim Crow proposals. It became especially infamous because of Strom Thurmond and the southern delegation,” highlights Professor Walker, in reference to the South Carolinian Senator’s notorious opposition of civil rights legislation and record-long filibuster. This said, both professors drew a seemingly correlational relationship between the filibuster and such platforms less so than a causal one. Rosenfeld explains, “As the parties really started to diverge and become systematically different from one another … that meant minorities in the Senate started to think to themselves more and more ‘well look, we have this tool at our disposal to stop legislation we think are bad,’” causing its prolific usage by the start of the 20th century, as these movements emerged. “To say the filibuster is inherently that way, I don’t know if that is entirely accurate” says Walker. Whilst valid debate can be held regarding the merit of the filibuster’s usage in such cases as these, there is less basis to the notions that such backwardness is perpetuated by its very nature or the idea that the majority’s moral superiority in these cases is inherent. “Who knows who’s gonna be in the majority the next time around?” asks Walker. “Just imagine, the next five or ten years, the Republicans take the Senate … and maybe they’re all Marjory Taylor-Greene-style Republicans. Aren’t you glad then that Democrats have the filibuster?”

The filibuster has proven itself a strong safeguard against absolute majoritarianism as prescribed by our Founders, yet holds considerable adverse impacts. Imperfect as it may be, it occupies a vital role in the Senate, and the Constitutionalists in office would only ever be wise to forfeit this provision on the condition of a new one that likewise involves the Senate minority, but to the ends of collaboration over obstruction.