On the Fourth of July, we often invoke the founders, reflecting on their vision for America and how we might carry it forward into the future toward a more-perfect union. On this Independence Day, however, America must look in the mirror and acknowledge the recalcitrant structures that impede that progress for the sake of petty politics.
Congressional Republican leaders’ wielding of the filibuster has turned the Senate into the sort of institution that likely would make the founders spin in their graves. A tactic used sparingly in the 19th and early 20th centuries to require a supermajority for measures to pass the upper house is now Republicans’ go-to wrench to throw into the gears of democracy.
To be sure, the filibuster has not been limited to a single party’s toolbox since its inception in the early 19th century. Southern Democrats notoriously used it to rebuff antebellum challenges to the institution of slavery. It saw similar usage in the early 20th century by defenders of Jim Crow and opponents of civil rights legislation. Modern-day Senate Republicans’ recent blocking of voting rights legislation fits neatly into a dark and shameful legacy of using this anti-democratic measure to slow the nation’s progress toward living up to its most cherished ideals.
The use and nature of the filibuster over the last half-century, however, has metastasized into something very different, turning the Senate into a legislative body that doesn’t just protect the minority party but in practice defers to it. By abusing the filibuster to reliably subvert the will of the majority, Senate Republicans have essentially rewritten the Constitution in their favor. Article 1 specifies the few instances where Congress requires supermajorities for action — rare and special circumstances such as overriding presidential vetoes, impeachment and treaty ratification.
Nearly any legislation hoping to pass the Senate now, however, requires not just a simple majority but 60 votes. As a result, important bills that are not only popular among the electorate but have the simple Senate majority to pass as the Constitution intended — from the aforementioned voting rights bill to the Biden administration’s infrastructure package — are doomed.
For all the lip service and ostensible reverence Republicans often pay to the Founding Fathers and originalism, they have apparently forgotten that this sclerotic crisis in governance was among many of the founders’ fears in authoring the Constitution. Alexander Hamilton, for example, discussed the shortcomings of The Articles of Confederation in Federalist Paper No. 22, specifically targeting measures that, like the filibuster, require a supermajority to do any legislative business: “Its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.” Does this sound familiar?
Those who benefit from purposefully hamstringing the legislative branch claim the filibuster makes the Senate a more deliberative body and boosts the prospects of bipartisanship. All it really provides for, though, is paralysis — that is, whenever Republican Senate Minority Leader Mitch McConnell wants it to. There was apparently little need for deliberation or bipartisan spirit when Senate Republicans rammed through former President Donald Trump’s third Supreme Court justice pick about a month before a presidential election — a vote largely along party made possible because of then-Senate Leader McConnell’s torching of the filibuster for confirmation of Supreme Court justices in 2017.
The filibuster as it is now wielded by Senate Republicans — a bludgeon to kneecap President Joe Biden’s administration — is not a tool for increasing bipartisanship or fairness to the opposition but one of political nihilism where the will of the majority is simply overturned by the rule of the minority. As it stands now, Democrats could get up to nine GOP senators to agree to a piece of bipartisan legislation, but Sen. McConnell’s finger permanently hovering over the filibuster button would render it meaningless. As a result, a Republican Party whose leadership is still partly captured by the polarization of Trumpism is allowed to play politics with the nation’s future by slow-walking or downright torpedoing important legislation as the nation seeks to recover from the COVID crisis, among other challenges.
The Senate’s structure is inherently undemocratic in the interest of preserving the voices of the union’s smaller states. Not content with this structural advantage, the Republicans’ cynical use of the filibuster makes the Senate even less democratic. It also makes it such that, for the minority party empowered by the filibuster and the Senate’s structure, the path of least resistance is not to govern but to simply prevent the majority party from governing at all.
America cannot afford Republicans’ continuing prioritization of political self-preservation over their sworn duty to the voters that elected them. If not for the Democrats pursuing the American Rescue Plan Act through budget reconciliation — a process that allows for certain spending measures to be approved with simple Senate majority — that critical coronavirus relief package likely would have been stymied by a Republican filibuster as well, despite its necessity and broad public support including among Republican voters. Budget reconciliation, however, is not a permanent option, and can only be used in certain budget cycle intervals.
If Senate Republicans are going to continue to use the filibuster not as a niche parliamentary tool but as an end-run on the Constitution to upend the legislative process and render meaningless the will of the majority, then it is clearly time for filibuster reform. There are ways to foster bipartisanship and substantive debate in the Senate — but this is clearly not one of them.
— The Berkshire Eagle