The filibuster has recently been increasingly perceived as a rule that has stalled progress and stopped leaders from addressing issues that voters elected them to rectify. However, while the filibuster of today should be reformed, abolishing it would threaten our unique brand of government by fundamentally changing our system of checks and balances that protects the rights of all — not just those with power.
Most critics of the filibuster argue that it is anti-democratic. In requiring a supermajority of 60 votes to obtain cloture, it is believed to not adhere to democratic principles. The truth is that our founders feared pure democracy. The reason is simple: it would empower the majority to invalidate the rights of the minority. Congress was built with the goal of preventing the “tyranny of the majority.” While the House of Representatives provides a reflection of the country’s current political disposition, the Senate ensures that smaller states have an equal voice to larger states. The Senate, consequently, has been given the responsibility of balancing minority and majority. The filibuster, while not a rule created by the founders, promotes this end. It ensures that bills have bipartisan support, and gives the minority party the power to fight for their rights on equal terms. We often forget that the minority is not a tiny fraction, but potentially encompasses more than 70 million people if we are looking at the most recent election. A legislature where only a majority of votes are required to pass legislation would enable that majority to force their way of life and beliefs upon the rest of the country.
While the filibuster has a legitimate basis in theory, many issues have arisen in practice. Those issues can largely be attributed to a change in the filibuster in the seventies. Following the exhaustive debate extensions that paralyzed the Senate during the Civil Rights Era, the most infamous being Senator Strom Thurmond who filibustered the Civil Rights Act of 1957 and Democratic Majority Leader Mike Mansfield created a Two Track System in 1972. This allowed for two bills on the floor at the same time, but in doing so, enabled the practice of seeing if a specific bill had 60 votes for cloture before debate even started. While he hoped it would help make the body more effective, it has also made the mere threat of a filibuster enough to stall legislation. Today, even nominees who received 85 or 90 votes were filibustered through this system to stall their acceptance.
The best solution going forward is a return to the past filibuster with no Two Track System. There is a reality that while representatives are supposed to represent their constituents, they are swayed by other interests. Today’s filibuster enables such leaders to stall or eliminate legislation without having to publicly take a stand on it, thus allowing them to evade any potential backlash from their voters. In a period where the individual is more empowered than ever before, if Senators who abuse filibusters on issues that have widespread bipartisan support, such as gun control, are actually forced to perform one publicly, they are much more likely to catch the attention not only of the media but of individuals on social media. This empowers individuals, specifically their constituents, to hold their representatives accountable for helping maintain a potentially unpopular status-quo. Moreover, it forces the minority party to decide which issues are of actual significance to their constituents and worth stalling the Senate. While it could result in a paralyzed Senate, what purpose does a legislative body have if not to deliberate today’s polarizing issues? Likewise, we should add to the rules and motions of the Senate that can not be filibustered. For example, by filibustering a “motion to proceed,” preventing a bill from even being introduced, leaders can evade justifying their positions publicly. Getting rid of this would still maintain one’s ability to filibuster the bill as a whole but would still mean it could be debated and for the American people to see.
In this era of extreme polarization, getting rid of the filibuster would radically antagonize a substantial part of the American population. However, we are doomed to deal with the same issues if we do not make any significant changes. We must find a middle ground to encourage change while also not risk pulling the nation apart any further in the post-Trump era.