The Left Is Wrong: The Filibuster Is Good for Democracy

One of the themes of American life in recent decades has been the continued neglect or even destruction of institutions.

T o witness the current debate over the filibuster is to watch the Senate at war with itself as an institution. As Yuval Levin explored in A Time to Build, one of the themes of American life in recent decades has been the continued neglect or even destruction of institutions, with those who hold positions of power viewing these institutions merely as platforms for their ambition rather than as distinctive entities to be preserved.

This pervasive institutional deterioration provides a grim context for the current debate about going nuclear on the legislative filibuster in the Senate. Over the past 20 years, Washington has all too often been indifferent to the demands of institutional politics, which is in part why it has faced a surge of populism at home and countless frustrations abroad. Looking at the institutional imperatives of the Senate might reveal some of the risks to political stability posed by the “nuclear option.”

An opening distinction (one often ignored in contemporary discussions of the filibuster) should be made between filibuster reform (or even abolition) and the nuclear option. Like the U.S. Constitution, the standing rules of the Senate have a mechanism by which they can be changed. For instance, they stipulate that a two-thirds vote of the Senate is required to end debate on changing the Senate rules. The filibuster could be — and has been — reformed through the standing rules of the Senate, as when the threshold for cloture was changed from two-thirds of voting senators to three-fifths of the whole Senate in 1975.

However, many proponents of eliminating the filibuster seek to do so through the “nuclear option.” Under the nuclear option, a bare majority of senators creates a precedent to ignore the standing rules of the Senate. The detonations of the nuclear option in 2013 and 2017 reinterpreted the Senate rules to lower the cloture threshold for executive-branch nominations from three-fifths of the Senate to a simple majority. The text of the standing rules was left in place, but the Senate agreed to ignore those rules. Nuking the legislative filibuster would follow a similar pattern, creating a precedent to ignore Rule XXII (which sets the rules for cloture). The nuclear option could be used to eliminate the filibuster or to modify it, but the point of the nuclear option — the reason it is called “nuclear” — is because it attacks the heart of the Senate: the overlapping procedures, rules, and privileges that shape the institutional character of the Senate.

Using bare-majority votes to reinterpret or revise the Senate rules is not unprecedented, but over the past 40 years, that strategy of majority nullification has escalated. The past decade has shown how the nuclear option is an institutional doomsday machine. Less than eight years ago, Harry Reid first detonated the nuclear option for executive nominations other than Supreme Court justices. Four years after that, Mitch McConnell deployed it for Supreme Court nominations too. Two years after that, McConnell employed it yet again to shorten the time for debating many nominations. Now, many Democrats (reversing their pledge of four years ago) are calling for its elimination for legislation. Blow by blow, partisan intensity has chipped away at the institutional character of the Senate.

When he was in the Senate, Barack Obama argued in 2005 that “everyone in this chamber knows that if the majority chooses to end the filibuster — if they choose to change the rules and put an end to democratic debate — then the fighting and the bitterness and the gridlock will only get worse.” The future president was not wrong here. The nuclear option only escalates partisan polarization. The number of cloture votes on nominations exploded after Reid detonated the nuclear option for nominations; Donald Trump’s nominees faced more cloture votes than the nominees of all past presidents combined. Even without the legislative filibuster, the Senate rules provide countless opportunities for obstruction, as Mitch McConnell has warned and as consultant Luke Thompson has demonstrated. In a post-nuclear wasteland, the minority will have every incentive to use those tactics, and the majority will have every incentive to invoke the nuclear option again and again to close off those avenues of obstruction.

Going nuclear is the act of senators’ sacrificing their individual power on the altar of party loyalty. The leveling of the institutional character of the Senate would create a vacuum of power to be occupied potentially by the majority leader as well as the president. In an Atlantic piece defending the elimination of filibustering tactics in the House in the 19th century, a former Obama aide freely admitted that this action strengthened the role of party leaders. The layers of institutions and rules that give the Senate its character have force only because the Senate is a body governed by a longstanding set of rules. If the majority can override the Senate rules at whim (which is what the nuclear option entails), then the institutional character of the Senate fades and the power of the leader of the political majority grows. Transforming the Senate into a crudely majoritarian body would make the majority leader closer in power to the speaker of the House.

Spurred on by Sen. Joe Manchin’s (W.Va.) recent suggestion that the filibuster should be reformed to make it more “painful” for the filibusterers, some have adopted that idea of a “talking filibuster” as a middle ground between using the nuclear option to eliminate the filibuster entirely and the status quo of the silent filibuster. But the “talking filibuster” boomlet may be too clever by half. The current “silent filibuster” exists as a convenience to the Senate majority. Whereas the old talking filibuster jammed up the whole Senate, the current practice of double-tracking — which was formalized in the 1970s — allows the Senate to press pause on a filibustered bill and pivot to another one. This means that a filibustering minority on any given bill no longer freezes the Senate as a whole. But it also has eliminated the need for the talking filibusters of old; filibusterers no longer need to hold the Senate floor over an issue but can instead simply announce an intent to filibuster to make the Senate turn to another topic.

No rules change would be required to bring back the “talking filibuster.” All it takes is the majority leader waiving double-tracking. In 1988, the Democratic majority leader, Robert Byrd (W.Va.), forced Republicans to mount a talking filibuster against a Democratic campaign-finance bill. Republicans held the Senate floor for a few days, and Byrd gave up. Many “talking filibuster” proposals are in fact not proposals to bring back the talking filibuster but instead efforts to change the rules of the filibuster itself — say, to require 41 votes to sustain a filibuster rather than 60 votes to break one. (At the moment, Senator Manchin has said that he would not support any proposal to change the threshold for ending a filibuster and has said he would work only within Rule XXII to change the filibuster.)

Whatever the merits of a particular filibuster-reform proposal, using the nuclear option to impose those rules changes is still “going nuclear.” As Bill Scher has observed in the Washington Monthly, going nuclear to impose some modified version of the filibuster (whether it’s branded as a “talking filibuster” or not) makes it much more likely that the filibuster itself will soon be nuked entirely. Senator Manchin has claimed that he very much does want to preserve the filibuster, but if that’s true, going nuclear to impose some sort of “talking filibuster” would be like wearing a fig leaf to protect against nuclear radiation — that obfuscatory ornament will not block the subatomic particles bombarding your body.

And there is much to be said for the institutional character of the Senate. The diffuse nature of the Senate has long annoyed American intellectuals, who tend to see politics through the lens of ideology. However, that diffuse nature also shapes the Senate’s structural role. Because of the individual powers of each senator, it is harder to subject the Senate to any form of ideological or partisan discipline. This lack of discipline frustrates ideologues, but it also helps make the Senate resistant to one-person rule.

In modern party politics, one of the greatest sources of discipline is partisanship. Almost inevitably, the president acts as the principal figure for channeling partisan passions. This gives the president much greater influence over both houses of Congress than the Founders may originally have expected: Rather than seeking to protect the powers of their respective branches, members of the House and Senate are instead tempted to be useful partisan soldiers for the president.

While this tendency toward partisan loyalty is to some extent unavoidable, it also needs to be restrained. When members of a faction in one branch grow too loyal to a chief executive who is of that same faction, corruption will be excused and the concentration of power in executive hands will be encouraged. The role of the executive plays a larger part in the stakes of the filibuster than many of its critics or some of its allies recognize. In 1834, the Senate censured President Andrew Jackson for overreaching his presidential authority. By 1837, Jackson’s allies were a majority of the Senate, and they moved to expunge this censure. Henry Clay and other Jackson critics attempted to mount a filibuster to block the expungement. A very early use of the filibuster, then, was about holding the executive to account (even though that filibuster failed and the Senate reversed the censure).

While many critics of the filibuster focus on the way it was sometimes deployed to block civil-rights laws, the historian Kerry Ellard has observed that the abolitionist senator Charles Sumner mounted a filibuster in 1865 against seating Louisiana’s senators because he did not think the reconstruction plan in that state did enough for civil rights. And Woodrow Wilson offers an example of the way that enemies of the filibuster could also be proponents of segregation and executive supremacy.

In his 1926 study The American Senate, the Columbia University legal theorist Lindsay Rogers highlighted the role of the Senate as a check on the executive — a role it could perform only, he argued, because of the filibuster. Rogers saw this firsthand. In the early 1920s, the Harding administration was at the center of a growing web of scandals. The House, held by Harding’s fellow Republicans, rebuffed calls for investigations. However, even though Republicans also held the Senate, that chamber began bipartisan investigations of the administration. According to Rogers, the threat of obstructive tactics (including the filibuster) by recalcitrant senators helped persuade the Republican-held Senate to take action.

In light of these circumstances, Rogers asserted that “the undemocratic, usurping Senate is the indispensable check and balance in the American system, and only complete freedom of debate permits it to play this role.” This does not guarantee that the Senate will always exercise rigorous oversight of the executive; recent decades have often suggested that it has not (or at least that senators of the president’s party will sometimes act to defend his power, even if it is at the expense of the Senate’s). But, Rogers argued, the structure of the Senate causes it to be more constitutionally equipped to distinguish itself from the president than the House when it is controlled by the president’s party.

In addition to the danger of absolute party loyalty to the president, there is also the risk that great factional passions can cause one party to turn vehemently against the other party. This intense factional warfare is also at odds with the overall architecture of the American federal government. The partisan discipline characteristic of many parliaments abroad proves toxic in the American system. Staggered Senate terms, biennial House elections, and quadrennial presidential elections make it very hard for one party to have total control. Throughout American history, even some of the most transformative measures have relied on votes from members of both parties. Many of the compromises that were tried to prevent the Civil War, civil-service reform in the late 19th century, many major provisions of the 20th-century welfare state, and the civil-rights laws of the mid 20th century all mustered bipartisan support. Over the past 40 years, divided government has been the norm. This tendency toward mixed government suggests the importance of cultivating institutions and norms that restrain factional passions. (It is perhaps worth adding that the success of the United States as a great power on the world stage in the 20th century depended precisely upon the suppression of hyperpartisanship; a nation torn by factional warfare will struggle to act as a ballast for an international order.)

Presidents have often railed against the filibuster, and both Barack Obama and Donald Trump supported more of an outsized role for the presidency — and a diminished role for Congress. Unsurprisingly, both Obama and Trump have called for the elimination of the filibuster. It might also be revealing that many of those who have been most eager to denounce the filibuster have also been sharply critical of the Senate as an institution — as unrepresentative, undemocratic, and a fundamental constitutional problem.

Despite the claims of its critics, the institutional character of the Senate may serve as an important constitutional guardrail. The idea that factional loyalty and factional conflict could degrade the constitutional integrity of American government seems less like a panicked invocation of a “slippery slope” and more like a truth demonstrated by recent events. High-profile Democrats (including close Obama ally Eric Holder) have begun a campaign to pack the courts. Contesting the counting of electoral votes has become a quadrennial partisan exercise, and House members of both parties are much more likely to challenge the counting of votes than senators. In 2021, a majority of House Republicans voted to challenge the votes of states that Donald Trump lost, but only a handful of senators did. Institutional character — not merely the timing of elections — helps explain this difference. The most important variable for Senate Republicans contesting the 2021 counting of votes was not when each senator was up for reelection but how long he or she had been in the Senate: Almost all those who voted to object had served less than one full term. In part because the House is openly majoritarian, partisan identity is particularly keen in that body, but, even as the Senate has grown more polarized, it still has not yet entirely bent the knee to blind factional loyalty.

There are, of course, other benefits to the filibuster. It helps encourage collaboration between the parties. Partly in response to the diversity of the United States as a federated republic, many elements of its constitutional infrastructure encourage the process of buy-in across party lines. This collaborative buy-in makes change harder but also makes it more permanent. One side effect of the filibuster is that it encourages Congress to work on areas with broad agreement and defer confrontations over divisive issues. In a society as heterogeneous as the United States, that has certain advantages. The existence of the filibuster helps ensure that a temporary majority of 51 percent cannot impose its will upon the whole of the nation. Where the federal government is deadlocked on key issues, states have an opportunity to devise their own local solutions.

Moreover, the Senate still can act where there is a consensus. A sweeping revision of No Child Left Behind was shepherded through Congress in 2015. When the coronavirus crisis hit, Congress moved swiftly to pass relief measures (although partisan ambition blocked later relief packages in the lead-up to the election). It is a conventional talking point that Biden’s legislative agenda is “dead” if the filibuster remains in place, but that seems a deeply contestable proposition. Utah Republican Mitt Romney has proposed a universal child allowance, and Republican critics of such a benefit — such as Marco Rubio (Fla.) and Mike Lee (Utah) — have supported an expanded child tax credit. It certainly seems as though some kind of family-policy effort could garner 10 Republican votes in the Senate. Leading populist Republicans in the Senate, particularly Tom Cotton (Ark.), as well as top Democrats, have called for rebuilding American supply chains. A disparate coalition in both the House and the Senate could implement some version of corporate reform for the technology sector. Ironically, going nuclear could make consensus action on those issues more difficult by blowing up the collaborative norms of the Senate.

Some have argued that a universal 60-vote requirement for all Senate actions (which became standard only in recent years) is itself a threat to the institution of the Senate. Yet while this requirement has indeed affected the way the Senate functions, nuking the filibuster to compensate for that would be a much more radical transformation of the Senate. If senators do want to reform the filibuster, they could do so through the standing rules of that body and get bipartisan buy-in for those reforms. Returning to conventional practices of legislation — by, for instance, opening up the amendment process — could also help overcome paralysis in the Senate. There are many opportunities for reform in the Senate that do not require blowing up its institutional character.

One key assumption of much American policy in recent decades has been that institutions do not matter — that enough righteous force, combined with market incentives, can ensure a democratic order. However, “move fast and break things” has led to frustrations abroad and at home. The Senate has long irritated more fervent ideologues, and yet the traits that purportedly make it “undemocratic” (such as the layers of rules and precedents that afford individual senators great protections — to engage in debate, propose action, and frustrate party leadership) are the very things that have helped it stabilize American democracy at certain key junctures. In a time of great unrest, perhaps we might remember the virtues of certain institutions before we irradiate them.