Arizona Senator Kyrsten Sinema understands what’s at stake. In an impassioned speech on the floor of the Senate, she described accurately and movingly all that’s threatened by the continued efforts of Republicans in state legislatures who, with simple, filibuster-free majorities, continue to press to restrict access to the polls by Democrats. She supports “strongly,” she tells us, voting rights legislation. And she implores Republicans to support it as well. But however important that legislation is, she will not sacrifice, she told us, the “60-vote threshold.” That “60-vote threshold,” she insists, protects us from an even greater descent into polarized partisan disfunction.
What’s most striking about the two Democrats defending the modern filibuster is how far their descriptions of the filibuster stand from reality. Senator Joe Manchin reveres the “232-year old tradition” in the Senate (there is no such “tradition”), and Sinema speaks as if the “60-vote threshold” was crafted by James Madison himself.
But there is no tradition of a “60-vote threshold” in the United States Senate. And the modern filibuster has nothing to do with the best of the Senate’s traditions. It has everything to do with the modern disfunction of today’s politics.
The history of the filibuster is captured in three periods over the past century. (It didn’t exist in any form in the first fifty years of the Republic, and was a simple annoyance for most of the second.)
In the first period, a Senator had to work to sustain a filibuster. To keep the Senate from voting, a Senator had to hold the floor and speak. Senator Strom Thurman did that in 1957 for 24 hours to slow passage of a civil rights law. That subject matter was not coincidental: throughout the 1960s, the only laws ever effectively blocked by a filibuster were bills related to civil rights.
The second period begins in the 1970s, when the rule governing the filibuster flips. No longer do the filibusterers need to speak to stop the vote on a bill; instead, those trying to stop a filibuster had to rally 67 votes to their side. That was a critical change, but the norms of the Senate dampened its effect. Senators knew they should filibuster only rarely. And so, rarely they did.
The third period is the creation of Minority Leader Mitch McConnell. Upon the election of Barack Obama, McConnell began a radical remaking of the norms of the Senate. True, now it took just 60 votes to stop a filibuster. But no longer would filibustering be the exception. The norms of the Senate changed, and obstruction became the rule. On practically every vote of significance, McConnell blocked action when that blocking gave Republicans a political advantage. The frequency of the filibuster thus increased dramatically. The Senate became the place that legislation went to die.
It is this modern norm that is being defended today. And given the fundamental dysfunction of the Senate, it is not clear why. The rule is plainly partisan, as it supports the Republican’s main agenda— tax cuts, since they are part of budget reconciliation, they don’t suffer the filibuster—while blocking the Democrats’. And it has been coincident not with any period of good feelings or productive work, but with the most dysfunctional period in the Senate's history.
Sinema insists the filibuster incentivizes compromise. Of course it does — because any rule incentivizes compromise. The question is with whom does the rule incentivize compromise? Were the Senate governed by a majority rule, then legislators would need to negotiate with Senators in the middle of the ideological spectrum — Senators like Sinema and Manchin. But with the filibuster, legislators must negotiate with the most extreme. Indeed, we might as well call the “60-vote threshold” the “Mike Lee threshold”—since he’s the 41st most conservative senator in the United States Senate.
Or think of it like this: In the current Senate, 42 Senators (enough to block any non-budget legislation) come from states that supported Donald Trump by 10 points or more. Those states represent just 21% of America. And yet theirs are the Senators who decide whether Joe Biden’s agenda gets a chance.
America once tried a system in which the legislature faced a supermajority requirement to pass ordinary legislation. That system failed — spectacularly. The Articles of Confederation imposed on Congress a supermajority requirement to do practically anything of substance. Forced constantly to negotiate with the most extreme, that Congress failed miserably. Our framers thus rejected supermajority legislatures and created a Congress that operated by majority rule. The first Senates had no technique for slowing legislation when the majority wanted to vote. They would have thought the idea bizarre.
And so too should we. McConnell’s hack on Senate norms has done nothing to induce cross-partisan cooperation. It has only further empowered — by rewarding — the extremes. By contrast, the original Senate pressed Senators to moderation, because the only members with influence were members whose views were relevant to crafting a majority. Those members were members in the middle, not the extremes.
No one should be defending the Senate Mitch McConnell built—certainly not two Democratic Senators who insist they see the urgent need to assure that partisans in the States don’t defeat the hope for a fair and representative democracy.
Yet bizarrely, these Senators continue to defend McConnell’s hack. The question every American should be asking them is just this: Why?
Add your name to petition Senator Sinema here.
Or do something else to stop this madness.
