It seems that these days we can't go five minutes without hearing about the filibuster. The filibuster is of course the Senate rule that requires sixty votes, rather than a simple majority, to pass most legislation. And when it comes to the filibuster, there are two camps. Those that want it to stay, and those that want it to go.

In the seemingly never-ending discussions about this dichotomy, one argument heard many times is centered on the idea of majoritarian rule, i.e. whether or not a simple majority of the people should dominate in a democratic society. Generally speaking, in our first-past-the-post election system, majority rule is the law of the land. But as the filibuster highlights, the details get more complicated than that.

Many opponents of the filibuster will argue that since the House of Representatives follows the principle of majority rule, that the Senate should too. Thus they say that the filibuster goes against this principle, as it requires a super-majority to advance legislation. They see the filibuster as a tool for obstruction, something that is blocking democratically elected majorities from enacting their mandated agendas.

Filibuster supporters, in response, will point out that a key concern of the Founding Fathers when drafting the Constitution was actually preventing majority rule. They wanted to avoid oppression by an "overbearing" majority. Supporters argue therefore, that although the Founding Fathers did not create the filibuster themselves, it is a tool they would approve of, and that we therefore shouldn't change it. This argument is then often used as jumping off point to paint grim pictures of a future where minority parties are completely powerless to shape legislation, because in a moment of partisan fervor, we eliminated the filibuster.

But to me, this is missing the big picture of American government. Precisely because the filibuster was not created by the Founding Fathers, they provided us with many other mechanisms to protect us from majoritarian rule. Therefore, I see the filibuster not as a lynch pin of anti-majoritarianism, but more as a lynch pin of gridlock, that adds an additional, unnecessary barrier to advancing legislation.

Roadblocks of Majoritarianism

The American system of government is both designed, and increasingly operates in such a way, that requires the consent of a large number of players to advance legislation. On the most basic level, passing legislation requires agreement between the House and the Senate, and the signature of the President. This is the traditional "How a Bill becomes a Law'' story that tells us you need three players to agree to advance a piece legislation. But, if you look a little closer, you find that there are actually even more roadblocks to the successful implementation of legislation.

Some of these roadblocks are formalized, such as the committee system in Congress. Pretty much every piece of legislation, before it can come to a vote before the full House or Senate, must first pass through a committee. Sometimes it must even pass through a sub-committee first. This means that the bill must first be approved by a majority of the members on that committee (or sub-committee). If the bill doesn't get that approval, its dead, even if a majority in the full chamber would have supported it. In fact, even before that, the bill would likely have to get the blessing of the committee (or sub-committee) chair to even be considered. That's potentially two to four more roadblocks. For those of you keeping track at home, we're now up to seven.

Other roadblocks to legislation happen after the bill is signed and becomes a law. One of these is the court system, culminating in the Supreme Court, which has the power to strike down laws that it deems unconstitutional. This is particularly relevant for the more controversial legislation that would likely pass were it not for the filibuster, as these are the types of laws often reviewed by the courts. Another post-passage roadblock comes from the states. Some legislation, such as the Affordable Care Act, requires the states to opt into certain provisions. Thus, certain states may be able to selectively avoid certain aspects of the legislation they don't like. Other legislation, like environmental regulation, may rely on enforcement. In these cases, a presidential administration can choose to simply not enforce the law, creating yet another roadblock.

That brings us up to ten potential roadblocks (more formally called veto points), and we haven't even considered the filibuster.

Each of these points serves, by themselves, as a check on majoritarian power. To successfully pass and implement legislation, in the most extreme case, a party would need to ensure the relevant Congressional committees (and sub-committees) in both chambers of Congress are onboard with the legislation, have majorities in both houses of Congress, control the Presidency, have a majority of ideologically aligned justices on the Supreme Court, control the levers of power in state governments, and ensure cooperation of the relevant federal agencies.

Achieving all of these things together would not be an easy task, especially when attempting to pass legislation that is only supported by a razor thin majority of the public, who could be exerting pressure against the passage. This means that if the filibuster was done away with, we would not suddenly be in a land where the party that controls the Senate can do whatever they want. They would still have many, many barriers to overcome before they could enact their legislation.

To put it simply, this would not be runaway oppression by a slim majority.

What about Bipartisanship?

A somewhat related argument for preserving the filibuster has to do with the idea of bipartisanship. Some people argue (usually the party in the minority at any given moment) that requiring a sixty-vote threshold requires the two parties to work together.

However, this does not appear to be the case. If the filibuster was what was enforcing bipartisanship in the Senate, you would expect majority parties to be working to tailor legislation to get the votes they needed to pass their bills. This would mean that you would see bills pass that have the bare majorities needed (60 votes). Instead, what you see is that most legislation that passes the Senate at all, does so with huge margins, usually 70+ votes in favor. These are the types of bills that you would expect to pass regardless of party control. Therefore, the filibuster seems to be doing more to block the majority party's priorities than its doing to encourage them to work with the minority party to tailor their preferred legislation.

Another issue with the bipartisanship argument is that it relies on the Senate existing in a vacuum. As was discussed above, the House and the Presidency must also be on board with any proposed legislation. Thus, if either were in the hands of the other party, bipartisanship would still be required, and history tells us this will likely be the case more often than not.

In the last 21 congressional election cycles, in only 6 of those has the same party controlled the House, Senate, and Presidency. Furthermore, it is taken almost as political gospel these days that the President's party will perform poorly in the midterms after his election. This means that even if a President were to pull a unified Congress into Washington with him on his coattails, such a trifecta is unlikely to last. It is therefore unlikely that any party will enjoy long stretches of unified control.

The Double-Edged Sword of Filibuster Reform

So if all of these arguments don't really hold up, why has the filibuster been with us for so long? Really, this comes down to fear.

Fear of what? Well, as we have seen, the filibuster is not a key lynch pin that is upholding anti-majoritarianism or bipartisanship. Removing it would just mean removing another veto point from the legislative process, making it easier to create new laws.

And this is what some people fear.

They fear what will happen when the other party gains control and has the power to operate without a filibuster. Democrats in particular will use this argument, as they (rightly) know that they will be in the minority more than they will be in the majority. The problem is that Republicans currently have a structural advantage in the House, Senate, and Presidency in terms of winning elections, and hold a 6-3 conservative majority on the Supreme Court. It is therefore not unreasonable to believe that Republicans will be in full control of the policy making process more often than Democrats.

This argument though does not convince me that the filibuster needs to stay. Firstly, we are a democratic society, and as a matter of principle, we should want democratically elected majorities to have the power to change our laws how they want, even if those aren't the majorities and the laws that we would prefer. (There is of course the whole issue here about Republicans being able to win institutional majorities with the support of only a minority of the population, but that is a much deeper structural issue, and one that in fact Democrats could help address were they to eliminate the filibuster.) And as we discussed above, even full control of the House, the Senate, and the Presidency, does not guarantee legislative success.

But the main reason I do not buy the fear argument, especially from the Democratic perspective, is because of what our two main political parties represent.

Policies (and Parties) Should Speak for Themselves

Republicans are the party of small government. They do not have large legislative agendas they wish to pass. Their biggest policy goals when they had full control of government after the 2016 elections were,

• To repeal the Affordable Care Act,
• To pass tax cuts, and
• To appoint judges.

The first of these failed in part because of public pressure against the repeal, something that would certainly be present even without the filibuster. The second two priorities were already achievable without the threat of a filibuster.

Democrats on the other hand, have a long list of legislative priorities that can only be passed in the absence of the filibuster. Contrary to many Republican priorities however, these agenda items are generally popular. Stricter gun control, increasing the minimum wage, expanding voting rights, and taking action on climate change, are all Democratic priorities that have the support of the majority of the public. But, despite the fact that Democrats control the House, Senate, and Presidency, these priorities cannot become law, because of the filibuster.

As a result, the state in which we currently find ourselves is that, generally speaking, Republicans use the filibuster to block popular legislation, while not being held back substantially by the filibuster themselves, and Democrats are unable to deliver on popular promises because of the filibuster.

Without the filibuster, one can therefore assume that Democrats would pass popular legislation when in full control of government and be electorally rewarded. Republicans on the other hand, would not see a meaningful change in the way they conduct business. Furthermore, Republicans currently seem to be doubling down on the losing strategy of 2020 and leaning into Trumpism. This is a policy agenda that is certainly not supported by a majority of the country, and one, that were it to be forced through in a filibuster-free Senate, would likely result in electoral backlash. Democrats therefore stand to gain overall by eliminating the filibuster. Not to mention that doing so would increase the efficiency of government.

This increase in efficiency is critical, especially at a time when Congress is often gridlocked. Eliminating the filibuster would be a step towards a world with reduced gridlock, a world where Congress is active, and passes legislation. The parties and their legislation could then be judged based on their real-world effects, instead of theoretical arguments and cultural buzzwords.

This would allow both parties, but Democrats in particular, to pass the popular items on their agenda. It would also provide a moderating effect (especially if done in tandem with legislation aimed at reducing Republican's institutional advantages) on the least popular legislative priorities of both parties, but of Republican's in particular.

And most importantly, all of this would still take place within the confines of a system that was designed to both protect against majoritarian rule and require bipartisan compromise and agreement.

These are just some of the many reasons why the filibuster needs to go, and why eliminating the filibuster wouldn't just be good for Democrats, but would be good for the overall health and wellbeing of our democratic system.

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