The faulty logic of defending the filibuster

The rule is arbitrary, impedes self-government, and could cost the Democrats their majority

In his newsletter yesterday, New York Times opinion columnist Jamelle Bouie (one of the good ones) shared a 2010 Connecticut Law Review article by a political scientist named Josh Chafetz in which he that the Senate filibuster is actually unconstitutional because it impedes the people from meaningfully engaging in self-government. In both their views, the supermajority requirement for the ordinary business of lawmaking gives too much power to the political minority, violating the democratic promises of the Constitution. Chafetz writes:

The mere fact that our Constitution has some anti-majoritarian elements should not serve as a bootstrap by which any anti-majoritarian device is made constitutionally legitimate. … Rather than use some deviations from majoritarianism to justify still others, we should take note of the essential popular sovereignty foundations of our Constitution and insist that, in such a polity, minority veto cannot be piled atop minority veto indefinitely. The Constitution — our higher law — specifies certain deviations from majoritarianism. But the exceptions should not be allowed to swallow the rule, nor should antimajoritarian devices in higher law be used to justify antimajoritarian devices in ordinary law.

It should not surprise many of you that I agree with this argument. The filibuster was not widely used in its current, completely-defeating capacity until Southern Democrats, and later conservative Republicans deployed it to stall Civil Rights legislation. Before then, it was only a modest barrier to the majority getting what it wanted; Chafetz notes that almost every filibustered bill before 1880 eventually passed as senators relented and respected some of the political norms around majority will.

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But now, the filibuster is used to enshrine the power of the political minority not only sparingly, but continuously. The problem with the filibuster, Chafetz notes, is that Republicans get to use it to repeatedly deny Democrats from achieving their (much more popular) policy goals. But a “democratic” government that does not reflect the demos is not democratic at all. Therefore, the filibuster ought to be reformed, if not outright abolished. Chafetz has a few ideas that could help:

So, are there any reform possibilities which might assuage Senators’ fears about majority cloture while still conforming to the constitutional principle laid out above? I think there are several, including: non- entrenched supermajority cloture (that is, a supermajority is required to achieve cloture, but the supermajority rule can be changed by majority vote); a suspensory filibuster (that is, a minority can delay but not permanently defeat a majority proposal);241 or a declining filibuster (that is, after debate on a measure began, the number of votes needed for cloture would slowly decline until a bare majority sufficed).242 Each of these has arguments to recommend it, and I would think that a constitutionally conscientious Senator could justify supporting any of them. A constitutionally conscientious Senator cannot, however, justify supporting the status quo.

I think these are fundamentally agreeable proposals. Senators who defend the filibuster typically do so because the supermajority requirement helps further debate in the chamber, the “greatest deliberative body on Earth.” Both of these claims are quite dubious; when was the last time a senator was persuaded on a policy by a debate during a filibuster?

In fact, given that the filibuster is most often deployed as a threat against a bill, killing it before it can be taken up, I would argue that it prevents debate more than it furthers it.

The debate about filibuster debate gets even more illogical when you consider the political calculations of Democratic senators who are defending it. Moderate Democrats like Joe Manchin, Kyrsten Sinema, and Joe Biden say it is necessary for bipartisanship and yadda yadda yadda about deliberation. But they may also be influenced by faulty electoral calculations. In Sinema’s and Biden’s shoes, particularly, a defense of a rule that will prevent popular policies — such as the $15 minimum wage, health care reform, or restructuring the tax code to be more progressive — from being enacted is illogical. They were elected to pursue these goals, but can’t so long as they defend anti-majoritarian rules. If you think Biden or Sinema is going to get a blue wave in 2024 after years of sacrificing bills that have majority support in the name of bipartisanship, I have a bridge in Brooklyn to sell you. In this way, the supermajority requirement might hurt more than help.

I can’t really say the same for Manchin. He’s a Democrat in a state that voted for Donald Trump by thirty points. He has to act like a conservative Republican or he’ll get kicked out the door. In his case, the electoral connection probably justifies his actions. But this, too, is more an indictment of the Senate than anything else; the only Constitution in which West Virginia should get as many Senators as neighboring Virginia or Ohio is one in which farmers, coal miners and utility-pole constructors are more “valuable” in governing than grocery store clerks, teacher, and software developers. And I don’t think anyone can either (a) appropriately make that argument or (b) argue that that’s what our Constitution (as amended today) says.

Abolishing or reforming the filibuster is necessary if America is to reach her promise of providing a representative, republican form of government to its citizens. But it’s not only the “right” thing to do; for Democrats, it might even be the smarter thing to do.