May 05, 2021
A group of more than 350 historians, political scientists, and other scholars concerned about the future of democracy in the U.S. released an open letter Tuesday in which they explained the history of the legislative filibuster and urged lawmakers to immediately reform the Senate rule in order to end gridlock and restore "public faith in our system of government."
"A government unable to produce results that significant majorities of the public elect their representatives to deliver is no longer a representative government," the scholars wrote in a letter addressed to U.S. senators. "The disconnect between popular support for policies and a government's ability to enact them ultimately erodes public trust, deepens political cynicism, and delegitimizes that system of government."
The academics joined a growing chorus of voices--including dozens of congressional Democrats and scores of progressive advocacy groups--calling for the elimination, or at the very least, reform of the 60-vote rule, which currently allows the Republican minority in the Senate to, as Rep. Barbara Lee (D-Calif.) put it, "prevent a democratically elected majority from passing overwhelmingly popular legislation" to expand voting rights and reform labor law, among other priorities.
On Wednesday at 7:30 pm ET, Democratic Reps. Marie Newman and Sean Casten, both of Illinois, will be joined by Adam Jentleson, author of Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy, for a virtual town hall about "why the filibuster has got to go."
\u201c\ud83d\udea8We\u2019re live TONIGHT at 6:30 CT\ud83d\udea8\n\nJoin me, @RepCasten and @AJentleson for a discussion on why the filibuster has got to go. \n\nRegister here \u2935\ufe0f\nhttps://t.co/Ck3PIzu2AH\u201d— Congresswoman Marie Newman (@Congresswoman Marie Newman) 1620220688
The scholars wrote that "with critics of the filibuster advancing arguments for its reform, we write to you with the hope that a shared understanding of this parliamentary procedure, including its history and its implications for our system of government, can better inform discussion."
"We believe that procedural reform can strengthen the core functions of the Senate as envisioned both by the Framers of our Constitution and by generations of Americans--as well as sustain Americans' faith in democracy," they continued.
In contrast to the House, the Senate has fewer members with broader constituencies, higher age requirements, longer terms, and equal representation by state. According to the scholars, the Framers included these features "to insulate the Senate from political winds and support senators' abilities to deliberate thoughtfully."
Today, however, "the Framers' vision of the function of the Senate has largely been inverted," the letter reads.
Now that lawmakers can send an email to kill a bill without ever leaving their office, "leaders on all sides agree that the Senate does not engage in the robust deliberation, debate, and compromise that it once did," the scholars wrote. Instead, "it is now the world's only legislative body with an effective supermajority requirement for common legislation."
The academics emphasized that "the Framers explicitly rejected a supermajority requirement for common legislation," thanks in large part to their direct experience with the problems of a dysfunctional government.
"In the wake of the Articles of Confederation, which prescribed a supermajority for a variety of federal actions, delegates debating and drafting our Constitution were acutely attuned to the problem of gridlock," the scholars wrote. "At the Constitutional Convention, they reflected a broad agreement that the supermajority thresholds had paralyzed the young government, and in turn dismissed a supermajority proposal except for three types of votes: impeachment, treaties, and constitutional amendments."
As the scholars explained in their letter:
The filibuster is not original to the Constitution: it developed in the early nineteenth century as an exploitation of the Senate's generous rules of debate, propelled in part by proslavery senators seeking to protect slaveholder interests. Before the Civil War, filibusters frustrated the majority but typically did not succeed in blocking legislation altogether. More often, as was the norm, senators in the minority yielded to the majority after using the Senate floor to make their case.
During the Jim Crow era, the filibuster became more powerful, and was used not only to frustrate the majority but to block legislation: often, to maintain Jim Crow laws and stall civil rights bills. Changes to the number of votes required to invoke cloture--to end debate on a bill--were adopted throughout the twentieth century, formalizing the ability of a minority of senators to prevent votes on bills supported by a majority. Still, for most of the last century, filibusters remained rare.
Only in recent decades have filibusters effectively created a regular supermajority threshold for routine legislation, with prior norms of restraint all but disappearing. Various scholars, including many of the undersigned, have studied the relationship between the modern filibuster and the decline in legislative productivity; the decline in legislative debate; and the transfer of power from Congress to the Executive Branch, where policymaking is more likely to experience pendulum swings from one administration to the next.
We have argued elsewhere that these dynamics have impaired legislative policymaking, aggrandized executive power, worsened partisan polarization, and decreased policymaking continuity. While some of these questions are unsettled and debated in good faith, we share a common concern that today's filibuster is, on balance, weakening Congress--while creating the very supermajority requirement the Founders clearly sought to avoid.
"We fear it is also weakening democracy. The U.S. government is now saddled with more 'veto points'--features in a political system that can terminate the advancement of a policy--than any other advanced democracy," the academics added. "The result has been an inability to take action on broadly popular policies."
The scholars pointed out that "over the last 30 years, nearly 80% of bills blocked by the filibuster were bipartisan, with the average supported by five senators from the other party; and almost a quarter of all filibustered bills in the last 16 Congresses were supported by senators who represented over 60% of the U.S. population."
The anti-democratic nature of the filibuster was also highlighted in a video shared Tuesday by the racial justice group Color of Change.
\u201cFor over 80 years, the Jim Crow Filibuster was only used to block civil rights bills, but now it\u2019s used to stop nearly everything \u2014 including bipartisan agreements on background checks for gun purchases and immigration reform. Learn more: https://t.co/WSQVz20AbL\u201d— ColorOfChange (@ColorOfChange) 1620140469
"This dynamic is untenable for a democracy," the scholars wrote. "As [Alexander] Hamilton cautioned, minority vetoes in Congress would 'destroy the energy of the government' by keeping it in 'a state of inaction.' We fear that faith in our democracy will continue to decline as long as such novel roadblocks beyond what the Framers designed remain in place."
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