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The U.S. Capitol Building. (Photo: Kent Nishimura / Los Angeles Times via Getty Images)

The U.S. Capitol Building. (Photo: Kent Nishimura / Los Angeles Times via Getty Images)

The Filibuster Should Be Abolished or Make Senators Pay a Price for Keeping It

Letting senators block bills in secret is anti-democratic and it needs to end. 

Our democracy is in serious need of reform. So perhaps it’s not surprising that a landmark bill to make it happen is being blocked by an anti-democratic tactic: the Senate filibuster.

Changing the rules to get rid of the 60-vote threshold for passing bills would require the cooperation of all 50 Senate Democrats. That includes Sen. Joe Manchin of West Virginia, who has said that he opposes abolishing the filibuster. But the door is not entirely closed.

Manchin recently expressed openness to the idea of requiring a so-called talking filibuster and making it "more painful" for those who want to stall or derail a bill. Manchin has said that he’s committed to keeping the filibuster in the Senate as a device that promotes bipartisanship and deliberation. The filibuster, however, doesn’t do much of either right now because it no longer requires filibustering senators to hold the floor or explain why they are objecting to a particular piece of legislation.

Instead, it has become pro forma. When any senator objects to moving forward on a bill—for whatever reason—all they need do is call the cloak room and register an objection. The public is none the wiser, nor, typically, are their colleagues about who opposes the bill and why. What this means is that each bill now requires 60 senators in favor to move forward but does not in any way facilitate dialogue or efforts to reach across the aisle.

Under the Senate rules, a cloture petition is the mechanism by which a filibuster can be overcome with a three-fifths vote of the body. The cloture motion was once rarely used but has come to characterize how the Senate operates, making it difficult to enact laws without a 60-vote supermajority. What few realize is that to maintain a filibuster a senator does not have to hold the floor in the way made famous by Jimmy Stewart in the 1939 movie Mr. Smith Goes to Washington. The film depicted a new senator devoted to fighting corruption in politics and portrayed the filibuster as a tool of righteousness. Sadly, its history is not only less glorious but significantly more problematic.

By changing the rules to make them address the Senate to explain their position, reformers could force these senators to face the American public, their constituents, and their colleagues.

Some Americans mistakenly believe the filibuster originated with the Constitution and was part of the Framers’ plan for how the Senate should function. It plainly was not. Tellingly, the filibuster did not become a rule or practice of the Senate until 129 years after the Constitution was ratified and unfortunately became much more prevalent during the Jim Crow era.

Starting in the late 1950s, senators began to use the filibuster to thwart passage of civil rights legislation intended to address the deeply entrenched racism that affected so many areas of American life. Anti-civil rights Dixiecrats obstructed bills against lynching, poll taxes, and discrimination in employment, housing, and voting.

Most notable were their filibusters of the most significant civil rights bills in United States history: the Civil Rights Acts of 1957 and 1964. Then-senator Strom Thurmond held the floor against the 1957 act without a break for 24 hours and 18 minutes. Even longer, the filibuster against the Civil Rights Act of 1964 went on for 74 days, although it was ultimately unsuccessful.

But the talking filibuster as practiced by these anti-civil rights senators was not something they were required to undertake—it was something they wanted to undertake. While Dixiecrats wanted to flaunt their racist and segregationist positions, today’s opponents of legislation often prefer to wage stealth filibusters. By changing the rules to make them address the Senate to explain their position, reformers could force these senators to face the American public, their constituents, and their colleagues. Such a change would facilitate real discussion and true accountability for political positions. This reform to the rules could be achieved through a simple majority vote, should senators like Manchin follow through on this idea.

In truth, the filibuster should simply be abolished to return the Senate to majority rule as prescribed in the Constitution. Today, our country has urgent needs. Chief among these goals must be repair of our democratic systems. Millions of Americans support major reforms to ensure our democracy continues to function—overhauling our elections, creating stricter ethics rules for elected and appointed officials, limiting the poisonous influence of money in politics, and ensuring that voters choose their elected officials rather than the reverse. These reforms, which will make our institutions responsive to the popular will, are all embodied in the For the People Act. The House passed it this month, but without reforming the filibuster, it will not become the law of the land and our democracy will continue to founder.

However, its chances are better if Manchin facilitates a change to the rules that would make the filibuster function as it has been hailed by its proponents—as a tool for bipartisanship and deliberation. But only if senators are actually required to debate and can’t hide from the consequences of their obstruction.

© 2021 Brennan Center for Justice

Caroline Fredrickson

Caroline Fredrickson is the president of the American Constitution Society and a senior fellow at Demos.

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