Filibuster reform means bringing the old filibuster back

In an on Wisconsin Public Radio last week, Harris endorsed scrapping the Senate rule under which major legislation can be blocked unless a three appearance-fifths majority — 60 senators — agree to invoke “cloture” and cut off debate.

“I think we should eliminate the filibuster for Roe,” she said, “and get us to the point where 51 votes would be what we need to actually put back in law the protections for reproductive freedom and for the ability of every person and everyone “woman to make decisions about her own body and not have her government tell them what to do.”

Harris wants to abandon the longstanding institutional consensus that restrains a bare Senate majority from riding roughshod over minority opposition. That would effectively turn the Senate into a second House of Representatives, where the minority party has almost no bargaining power and debate is rigorously curtailed.

Procedurally, it wouldn’t be hard to eliminate the filibuster. All it takes is a majority of senators agreeing to make the change. Democrats control 51 seats in the current Senate, but they haven’t been able to blow up the filibuster because two members of their caucus — Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — have refused to go along with the change. Their refusal is based on principle: No matter which party is in the majority, they support the Senate norm that any significant legislation must have some minority buy-in.

On Sept. 24, Manchin, exaggerating for effect, called the filibuster “the holy grail of democracy,” characterizing it as “the only thing that keeps us talking and working together.”

A few years ago, one of Manchin’s former colleagues, also a Democrat, defended the filibuster in similar terms. Any attempt to blow it up, that colleague maintained, would “curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate.” That Democratic senator? Kamala Harris. Those words were written in 2017, when Donald Trump was president and he angrily demanded that Republicans — who had a narrow majority in the Senate — tear up the filibuster so he could get his priorities passed. It was then that Harris signed a bipartisan letter defending the filibuster. But her position flipped once the roles were reversed. With Democrats in control of the White House and the Senate, Harris is no longer interested in full, robust, and extended debate. She is only interested in passing a law to protect abortion nationwide.

Needless to say, if the filibuster is uprooted for abortion rights, it will be uprooted for everything. With Manchin and Sinema leaving the Senate in January, no Democrat will agree to reimpose it. Especially if that would mean waiting for the passage of other progressive priorities — enlarging the Supreme Court, say, or statehood for the District of Columbia, or a “wealth” tax on unrealized gains, or a nationwide ban on right-to-work laws. Of course, if Harris is elected president but Republicans win a narrow Senate majority, her eagerness to pull the plug on the filibuster will disappear.

There is an honest, principled argument to be made for opposing the filibuster in its current form, an argument not tied to mere partisan power struggles. The real problem with the rule is that its use has been degraded into something routine and automatic — a default setting that blocks any legislation from passing with less than 60 votes. That wasn’t how the filibuster traditionally operated.

A quick history lesson:

Beginning in the 19th century, any senator or group of senators could indefinitely block a vote on a bill the way Jimmy Stewart did in “Mr. Smith Goes to Washington” — by taking the floor to speak and refusing to stop until the majority agreed to give ground (or the speaker gave up from exhaustion). While a filibuster was underway, all other Senate business came to a halt. In 1917, the rule changed in one critical detail: A filibuster could be stopped if two-thirds of the Senate voted to end debate.

But all that was changed after 1970, when then-Majority Leader Mike Mansfield introduced a “two-track” system, under which a bill being filibustered would be set aside so the Senate could take up other matters. Mansfield expected that the change would make filibusters less desirable by stripping them of their power to gridlock the Senate. Instead, the number of filibusters skyrocketed. Senators quickly realized that all they had to do was announce their intention to filibuster such-and-such a piece of legislation. With no further effort on their part, it would take a supermajority to move the bill forward. The required threshold was reduced from two-thirds to 60 in 1975. Before long it was taken for granted that every bill needed 60 votes to pass.

In short, although the filibuster continues to exist in name, its raison d’être has been totally inverted: A parliamentary rule adopted to ensure debate while encouraging compromise has become an artificial gimmick to prevent debate. Along with the toxic partisanship that today dominates our politics, the modern filibuster’s influence has been to make the Senate more dysfunctional and less deliberative.

The solution to this problem isn’t to eliminate filibusters. It is to eliminate the two-track system that made them ubiquitous. Senators were far less likely to undertake a filibuster back when they knew that doing so would bring the Senate to a halt. It was a weapon used sparingly. During the entire 19th century there were only 23 filibusters. In the last quarter-century there have been nearly 2,000.

The Senate can make filibusters rare again by making them real again. A determined minority should have the ability to resist passage of a measure its members find intolerable. But they should have to demonstrate their resistance the hard way — by taking the floor, staying on their feet, speaking without letup, and facing the consequences. Only then should it require a supermajority to cut off debate, while other bills and motions could be advanced with a simple 50 percent plus 1.

True filibuster reform does not mean turning the Senate into a second House. It means bringing the old filibuster back. But where are the candidates who will say so?

This is an excerpt from Arguablea Globe Opinion newsletter by columnist Jeff Jacoby. Sign up to get Arguable in your inbox every week.

Jeff Jacoby can be reached at [email protected]. Follow him on @jeff_jacoby.