US Senate filibuster is anti-democratic. It should be eliminated
The filibuster in the Senate is unconstitutional, undemocratic and undesirable. Enacting virtually any of President Joe Biden’s legislative agenda requires that Senate Democrats eliminate the filibuster or substantially change it. Unfortunately, at this point, it all comes down to two Senate Democrats, Joe Manchin and Kyrsten Sinema, who have expressed opposition to changing the rules.
The Constitution itself says nothing about filibusters — they are provided for in the Senate rules. For much of the 20th century, filibusters required that a Senator hold the floor or hand it off to a like-minded colleague. Though generally uncommon, filibusters were used for years to block civil rights legislation.
In 1975, the Senate changed its rules so that a filibuster would no longer keep the Senate from doing its business. Now when there’s a filibuster, the Senate moves on to other business.
Opinion
Since the rules changed, there’s been an enormous increase in filibusters, and, as a result, virtually no bill can pass unless 60 Senators agree for it to be considered. This is, in and of itself, unconstitutional as the Constitution specifies when more than a majority is required for Senate action. For example, article I, section 7, specifies that it takes a two-thirds vote of both Houses of Congress to override a presidential veto. That clearly implies that a majority vote is sufficient to enact a law.
There are exceptions for budget reconciliation bills and nominations to Cabinet positions, lower federal court judgeships and the Supreme Court. Opinion polls showed that over 70% of Americans, including a majority of Republicans, favored the American Rescue Plan, yet every Republican in Congress voted against it. If the bill, a budget reconciliation bill, had been susceptible to a filibuster, it would not have overcome a Republican filibuster in the Senate.
The Senate is inherently anti-democratic, with every state, regardless of size, having two senators. Today, 50 Democratic senators represent 42 million more people than the 50 Republican senators — meaning senators representing less than 25% of the population can block any legislation.
The filibuster, too, is anti-democratic, especially in these polarized times. Perhaps there was a time when it was a desirable way of encouraging bipartisanship and collaboration. But not now, when Senator Majority Leader Mitch McConnell made clear that his goal is to block Biden’s agenda.
The proposal for a commission to investigate the Capitol insurrection, for example, was blocked by Senate filibuster. There is an urgent need for federal legislation for infrastructure, for police reform, to protect voting rights and much more — yet none will be adopted without a change to the filibuster.
Ideally, the filibuster will be eliminated. Some have said that eliminating the filibuster puts Democrats at a disadvantage when there’s a Republican president and Senate, but that assumes Republicans won’t eliminate the filibuster themselves if Democrats block their legislation. In 2017, when Democrats used the filibuster to block the confirmation of Neil Gorsuch for the Supreme Court, Republican senators simply changed the rules to abolish the filibuster for Supreme Court nominations.
Outside of eliminating the filibuster, another possibility would be to abolish it for particular types of bills, such as those meant to protect the democratic process. Another approach would be to initially require 60 votes to stop a filibuster, but on the second vote reduce that to 55 and on the third decrease it to the usual majority requirement. Another option is to return to the old Senate rules that required senators to remain present in case a vote to end the filibuster was called.
It’s long overdue to eliminate or substantially change the filibuster. Now the task is to convince Manchin and Sinema of that.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
