The Truth about Filibusters: They Don’t Protect Minority Rights, They Don’t Promote Legislating

Photograph Source: Martha Soukup – CC BY 2.0

The debate over repealing the US Senate filibuster is reaching a partisan fever pitch. Democrats are worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed. Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a warning that of Democrats do this they will regret it in the future.

Central to the argument for preserving the filibuster are two assertions. One is that it is needed to protect minority rights. Two, the filibuster encourages compromise. The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

The filibuster rule is a product of slavery politics, as was true of the electoral college. If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same. The Senate with its equal representation already gave the South a bonus in representation. But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South. John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation. But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation. His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it. It was used to oppose civil rights legislation in the 1950s and 1960s. While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now. Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress. But all that has changed, and Congress is far more polarized now than before. We know that the filibuster’s use has increased over time. Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time. It demonstrates a clear pattern of increased use of the filibuster over time.

The filibuster has facilitated that. One the filibuster encourages is not negotiation and compromise, but winner-take-all politics. Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation. If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time. A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time. In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed.

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.  Correlating the two statistically, there is a strong negative -.66 relationship. This means as the use of the filibuster has increased, the number of bills passed has decreased. This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.

Thus, the filibuster does not produce compromise and it does not encourage legislating. Instead, what it has done is weaken Congress, making it a far less effective body than it once was. This has produced two phenomena. One, it has empowered by the President and the Supreme Court. It has done that by forcing the president to govern by executive order and bypass Congress when it can. It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process. It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation. There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates. The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

The filibuster never was good for American democracy and it is even worse now. The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.