Quadrennial presidential elections, biennial House elections and staggered Senate elections make divided government likely: It has existed more often than not for five decades. This strengthens the case for the filibuster as a means of forcing factional compromises.
Imagine a future without the filibuster: After abolition, the first Senate controlled by a slender Republican majority might pass a national right-to-work law, a national voter ID law and much more. The next Democratic-controlled Senate might repeal all this, before enacting a $20-dollar-an-hour national minimum wage, card check unionization elections and much more. Then, a subsequent Republican-controlled Senate would continue the ping-pong legislating and repealing. The “mutable policy,” “unstable government” and “public instability” that the Founders (Federalist 62) warned against would become normal.
Barack Obama’s 2020 canard that the filibuster is a “Jim Crow relic” is refuted by the unlimited Senate debate that preceded segregation laws (and even the Civil War), and filibustering by progressives such as early-20th-century Wisconsin Sen. Robert La Follette. More recently, Democrats used the filibuster to thwart Republicans’ attempts to repeal Obamacare, block funding for Donald Trump’s border wall, force enrichment of the pandemic-era Cares Act, preserve taxpayer funding of abortion, block criminal justice reform, and for other progressive causes.
In 2005, Obama, then a member of the Senate minority, warned that “if the majority chooses to end the filibuster,” “bitterness” and “gridlock” would worsen. Such situational ethics are not uncommon:
Without the filibuster, the Senate would be “subject to the winds of short-term electoral change.” (Democratic leader Chuck Schumer, in the minority in 2017.) Ending the filibuster would be wrong because “we have to acknowledge our respect to the minority.” (Assistant Democratic leader Dick Durbin, when in the minority in 2018.)
The Supreme Court has long since stopped enforcing the Founders’ intention that the federal government be limited by the enumeration of Congress’s powers. So, the filibuster is increasingly important to protect federalism — the pluralism of disparate states. The filibuster is suited to the Senate, a non-majoritarian institution in which 576,000 Wyomingites have as much representation as 39 million Californians.
The 10 most-populous states have 53.173 percent of the population, the 10 smallest 0.745 percent — remarkably similar to 1970 (54 percent, and less than 3 percent). Of the 10 largest states, three are currently blue (California, New York, Illinois), three are red (Texas, Florida, Ohio), and four are purple (Georgia, North Carolina, Michigan, Pennsylvania). Had the Constitution’s framers not agreed on a Senate representing the states equally, there might not be a Constitution.
Some critics say the filibuster causes Congress’s procedures to frustrate the public’s expectations of swift-acting government. But by forcing the legislative process to take time to “refine and enlarge the public views” (James Madison, Federalist 10), the filibuster encourages more judicious expectations.
The filibuster implements the Constitution’s premise that minorities shall not be at the mercy of “the wantonness of power” (Thomas Jefferson) wielded by majorities. The filibuster measures and accommodates intensity of feeling concerning legislation, rather than mere numbers. It is, like the separation of powers and a bicameral Congress, a “complicated check on legislation” (Madison, Federalist 62) that prevents untrammeled, simpleminded government-by-adding-machine majoritarianism.
Allowing the expression of intensity can defuse it, thereby furthering government’s primary function: to keep the peace among people who are opinionated and egotistical (they prefer their own opinions). The 1964 Civil Rights Act that ended segregation in public accommodations passed after Southern opponents waged, over 75 days, the longest (543 hours) filibuster in Senate history.
The act was enforced with remarkable speed and remarkably little violence partly because Southerners, after the catharsis of protracted and intense resistance, felt they had suffered a dignified defeat.
This year, when you choose a senator, you might be choosing a new kind of Senate. In this season of anger, do you want a Senate that, without the filibuster, will be even more blown about by gusts of intemperate opinions, and will have less need to accommodate differences?
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