My Take on the Filibuster

Democracy is supposed to work by using majorities to make decisions. That’s how governments can decide what is right for the country. It’s pretty simple, right?

Well… no, it’s not quite that simple because of the tyranny of the majority idea. The tyranny of the majority is exactly what it sounds like - it’s when the governing majority uses their majority status to justify bad stuff. Examples include the white, slave-owning majority that kept slavery legal in the US until 1865, or the Nazi majority when Germany started a world war.

One way in which the tyranny of the majority can occur is through the abandonment of rationality. This is when a majority decides to do something stupid, like oppress a minority or start a world war. Sadly, it’s difficult to put constitutional checks on this issue because “stupid” is subjective. One example of such a government check is the separation of parliament (or congress) into two chambers, where the lower chamber is elected based on the popular vote of different electorates, and the upper chamber gives an equal amount of representatives to each state. This two-chamber system, used by democracies like Australia and the US, helps give fair representation to rural folks who would otherwise be out-represented by their urban counterparts.

Another such check on majoritarian power is the filibuster, which is a rule that allows senators to “debate” (or read a Dr Seuss book, like Ted Cruz did in 2013) an issue for an indefinite amount of time, effectively stopping all progress in the senate). The filibuster was introduced to the US senate in 1806 (that’s right, it is not part of the constitution), and it was rarely used until 1959, when a bunch of senators from the South wanted to block civil rights legislation. Nowadays, it takes a 3/5 majority in a cloture vote to end the filibuster.

Thanks to senate minority leader Mitch McConnell, what was once an obscure rule is now the centre of an intense political debate. During much of the Obama era, McConnell used the filibuster to block not only the major stuff, but the minor stuff too, grinding the senate to a halt.

You may have heard talk about the “nuclear option”, the only way that the majority can get around a filibuster and allow a bill to pass with a simple majority vote. It’s called the nuclear option because it involves appealing the filibuster rule (XXII), therefore setting precedent in the senate. Harry Reid, leader of the Democratic majority in 2013, used the nuclear option to make executive branch nominations and federal judicial appointments. Republicans used it in 2017 to secure a supreme court nomination for Neil Gorsuch.

The reason that the nuclear option is not used all the time is because the Democrats and Republicans are playing a cat-and-mouse game. Essentially, if one party uses it to pass major legislation, they set the precedent for the other party to use it in the future. That’s why it has only been used sparingly.

This cat-and-mouse game is why many centrists are a fan of the filibuster. The argument is: because both parties are afraid of using the nuclear option, radical legislation can be prevented from passing the senate, and thus partisanship is discouraged. In reality, the opposite is true. If the Republican Party knows that, if it were to gain power, the Democrats would block anything major from passing, Republican candidates can make outlandish and unrealistic campaign promises knowing that they’ll never have to act upon them. This increases the already inflamed partisan divide, thereby increasing general political division among voters without actually accomplishing anything in government.

So we know that the filibuster incentivizes partisanship (which is bad), but is it a good check on the tyranny of the majority? Republicans certainly say so - McConnell threatened that if the Democrats use the nuclear option to ditch it, a “scorched earth” environment would ensue, with Republicans refusing to give consent to even standard operations like the start time of sessions. This is a dangerous threat, not because McConnell would follow through, but because it creates the illusion that the filibuster is integral for unity.

There’s a good reason why Republicans are afraid of abolishing anything that protects minority faction rights in government: the republican voter base is shrinking. Ever since Trump was voted as the presidential nominee, the party traded the pursuit of traditional conservative values for populist partisan rhetoric, thereby narrowing their voter base to a faction of white, working class citizens without college educations (perhaps more on this in another post). Unfortunately for Republicans, this strategy has and will continue to fail due to the steady decline in white voters without college degrees (see source). And if the Republicans’ voter base is in steady decline, in a fair system the Republicans’ share of power should also be waning.

Source: Source: Census Current Population Survey, IPUMS-CPS, University of Minnesota (found in NYT article: https://www.nytimes.com/interactive/2020/10/22/us/politics/trump-voters-demographics.html)

As an inexorable minority party with a shrinking voter base, the filibuster is the Republicans' only chance at having some semblance of power and control, so they will fight for it at all costs. But even if we understand that the Republicans want to protect the filibuster for their own good, it doesn’t answer the question that is plaguing Democrats at the moment: is the filibuster a good check on majority power?

It is easy to think that the filibuster is a great check on minority power when you’re in the minority, and that’s why moderate Democrats like Joe Manchin are against its abolishment. Many senators are too scared to abolish the filibuster, especially by using the nuclear option, for fear of what might happen if they become part of the minority.

Personally, I think that the filibuster is a terrible check on majority power: there’s only one thing stupider than the tyranny of the majority, and that's the tyranny of the minority. The worst of the pandemic may be over, but with the rising threat of China and the looming climate crisis, America needs to be ready, and that means having a federal government that can pass effective legislation when it is needed. And the filibuster certainly won’t help.