by Lee H. Hamilton
As Washington turns its attention to infrastructure and other matters of policy, the Senate filibuster isn’t commanding quite the same headlines as it did a few weeks back. But that’s only because the issue is percolating behind the scenes. At some point, it will return to the limelight.
And when it does, you should understand what’s at stake. Because as obscure as it seems, it actually goes to the heart of how we operate as a democracy.
The key point to remember is that as the country’s population has shifted, a growing number of senators have come to represent a shrinking portion of Americans. In the House, this doesn’t matter as much, since districts are apportioned by population. But in the Senate, current rules require 60 senators to agree to move a measure forward, with certain exceptions. This means that 41 senators can block most legislation, so in theory, the senators coming from the 21 smallest states—who together represent less than 12 percent of the US population—can keep the nation’s agenda from moving forward.
It’s hard to believe the country’s founders would think this makes sense. And it’s certainly a far cry from government of the people, by the people, and for the people.
In particular, it means that legislative initiatives that appear to have great popular support—including infrastructure spending, certain gun control measures, a higher minimum wage, even a legitimate path to citizenship for undocumented immigrants—will face tough sledding in the Senate. This is because it is remarkably easy for the leader of the Senate minority, Republican Mitch McConnell, to muster the 41 votes he needs simply to block legislation from moving forward. It’s a silent and powerful parliamentary move: Without Americans as a whole or senators’ constituents being any the wiser, bills die without coming up for a vote and there are no fingerprints on the murder weapon.
Now, the Senate wasn’t designed to be like the House, and there’s a lot to be said for maintaining rules that slow legislation down and ensure that the majority can’t simply get what it wants without negotiating. But the key word is “negotiating”—when the filibuster is used simply to ensure that a president and elected majority can’t get a bill considered, it’s become something else. So while there appears to be little appetite in the Senate for ending the filibuster outright, there’s strong incentive to explore alternatives.
These would be in keeping with a long history of filibuster reforms in the Senate: budget reconciliation starting in the 1970s allowed many bills related to taxing and spending to move forward with a simple majority; in 1975, the Senate changed the number of votes needed to move a bill forward from 67 to 60; and more recently, the Senate carved out exemptions on confirmation votes. In other words, there is precedent for change.
The options include expanding the breadth of bills that are exempt from the 60-vote requirement to move forward. Or the Senate could require more members (right now it’s just one) to force a so-called “cloture” vote, which brings the filibuster into play. Or it could reduce the 60-vote requirement, either for all bills or for particular kinds. Or, as some senators seem to favor, it could revive the requirement that senators intent on blocking legislation actually must get up and talk about it—which would have some drawbacks but at least would make it clear who’s standing in the way.
The Senate’s rules are a big reason we have a Congress that struggles to get things done—and a big reason our democracy seems to be hamstrung. I believe wholeheartedly in representative democracy, and in not trying to shortcut it or to restrict it: Proposals in front of Congress should be able to get a full debate and an up-or-down vote in which Americans’ elected representatives make clear where they stand. That’s how we hold them accountable and how legislative bodies go about the hard work of finding broadly acceptable solutions to difficult challenges. The filibuster allows a small group of them to sidestep all that.
Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.
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