The issue no one's talking about, but should be
The issue no one’s talking about, but should be
By Gordon H. Smith | Friday, May 31, 2024
The filibuster is back in the news. Arizona Democratic Sen. Mark Kelly, who has a reputation as a moderate, recently announced that he would support eliminating the filibuster to pass national abortion legislation.
Kelly is not alone. Last Congress, almost every Democratic member of the Senate voted to kill the filibuster. Only two stood against the tide: Kyrsten Sinema, Kelly’s Arizona colleague, and Joe Manchin from West Virginia. Their votes kept the filibuster — and the need for bipartisan cooperation in the Senate — alive.
But neither Sinema nor Manchin will be in Congress next year. Both are retiring. That raises the real prospect that the filibuster will again be on the chopping block if Democrats prevail in this year’s election. And without Sinema and Manchin, its odds of survival in a Democrat-led Congress don’t look good.
That is a significant concern, and it’s something every voter should consider as they cast their votes this November.
Everyone loves to hate the filibuster when they’re in the majority. In most cases, requiring sixty votes to end debate and move to final passage slows down legislation. It requires the majority to compromise, which means Senate leaders can’t stuff every little goody they want into the bill they’re trying to pass.
By contrast, when you’re in the minority, the filibuster is just about the only thing that gives you any leverage. It requires the majority to at least try to work with you to find common ground. It allows you to sit at the table if you’re willing to play ball. It prevents the majority from simply running roughshod over you and your voters.
Although the filibuster receives its fair share of scorn — primarily from whoever happens to be in the Senate majority at a given time — I firmly believe it’s an institution worth keeping. As someone who served in both the majority and minority during my time as a senator and did his best to work with both sides as much as possible, I believe the filibuster has made our country a better place. And as awful as our current politics seem, I believe it’s prevented them from becoming even worse.
These are not necessarily popular views. I remember how last time the filibuster was under serious attack, many Democrats did their best to paint it as a vestige of Jim Crow. They treated it as the last redoubt of the reactionaries, a historical anomaly that has prevented our country from moving toward its inevitable, glorious future.
This overly simplistic framing is not only wrong, but ahistorical. As renowned Senate historian Marty Gold wrote last year in a report published by the Orrin G. Hatch Foundation, “Senators of both parties have conducted filibusters on the broadest range of social and economic issues, questions of foreign policy and national security, and energy and environmental policy, among numerous others.” Gold conducted a deep dive into the origin and use of the filibuster and showed how it’s been used to shape and improve legislation on virtually every subject imaginable, from the Atomic Energy Act, to the creation of the Department of Homeland Security, to the Every Student Succeeds Act — Congress’s last major bipartisan education reform.
One of Gold’s most important insights, and a key point lost in much of the contemporary debate over the filibuster, is that the procedural rule doesn’t just stop legislation — it shapes it. Negotiations take place in the shadow of the 60-vote threshold. Democrats and Republicans alike know that any proposal must be able to win at least some votes from the other side to pass. Many measures never see the light of day because they’re entirely one-sided. Others are introduced with full knowledge by both sides that they’re merely an opening offer, that the sponsoring senators will need to trim their sails to hit that 60-vote sweet spot.
The true essence of the filibuster is not obstruction: It’s compromise. If a bill can’t get 60 votes, it’s because the proponents aren’t willing to make the changes necessary to win support from the other side. In many cases, the problem is with the bill, not the senators across the aisle.
Some may complain that’s not true, that the other side is just being obstructionist for obstruction’s sake. I’ll admit that occasionally that may be the case. But my experience as a senator was that most members genuinely wanted to get things done. They just disagreed on methods. Indeed, this sophomoric notion that the other side is all evil and will do everything possible to ensure your side’s defeat is not how things work in the real world. Ask yourself how many of your friends and neighbors view life that way, and then remember that politicians are actually people, too.
Others may argue that some issues are just too important to require 60 votes and that the Senate should therefore create “exceptions” for certain subjects. Voting rights is one example Democrats have identified. Senator Kelly’s exception for abortion legislation is another. Of course, one might reasonably argue that the more important the issue, the more imperative it is to have broad support before making significant changes. That would suggest the filibuster is actually more important when it comes to hot-button issues over which the public is deeply divided.
Regardless, the suggestion that the Senate can create subject-matter exceptions from the filibuster is a fantasy. There will be no end as soon as senators start down that path. Some senators will want an exception for gun rights, others for immigration, court packers for expanding the Supreme Court, and on and on.
There is nothing “moderate” about eliminating the filibuster. Killing it will make our politics more polarized, more extreme, more winner-take-all. The filibuster is one of the few things left in political life that encourages cooperation. It’s a critical piece of what’s made the Senate what it is — a deliberative body that actually debates and improves legislation, not just a rubber stamp for whatever Senate leaders happen to put out.
So keep this in mind as you cast your vote this November: The filibuster is on the ballot. How you vote will determine whether the Senate remains an institution that honors compromise and cooperation, or instead becomes merely another arm of modern power politics.
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Gordon H. Smith served in the U.S. Senate from 1997 to 2009. He is a board member and treasurer of the Orrin G. Hatch Foundation.
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