The Corner

Politics & Policy

The Filibuster’s Subtle Effects

The U.S. Capitol Building on Capitol Hill in Washington, D.C., December 4, 2020 (Tom Brenner/Reuters)

The possibility that the Senate might do away with the legislative filibuster is troubling. Some corners of this debate would have you believe that the filibuster is seldom used except to block civil-rights legislation and that its use only accrues to the betterment of the party out of power. Neither is true.

The filibuster is commonly used by senators in both parties. My rough and quick count finds that, in the past three years, at least 30 bills saw failed cloture votes in the Senate. Some of them were blocked entirely, while others eventually passed after more time passed or more concessions had been extracted. Unsurprisingly, in many of these instances, more members of the Democratic minority than the Republican majority voted against cloture.

The impact of the filibuster goes far beyond allowing the minority party to stop high-profile proposals. Because the possibility of the 60-vote threshold in the Senate is known to all parties — the Senate, House, and White House — it subtly shapes the entire legislative process in both chambers, starting from which bills are pursued, to how bills are drafted, to how congressional committees are run.

Several must-pass bills — government appropriations, funding deals, defense authorization — pass the Senate each year. Behind the scenes and without much fanfare, the existence of the filibuster ensures that these are at least somewhat bipartisan efforts.

This type of bipartisan cooperation reflects a fundamental purpose of Congress. My AEI colleague Yuval Levin put it well here on Sunday:

This is a primary purpose of Congress as an institution — to enable and compel accommodation in a divided society. And the fact that accommodation now seems nearly impossible in our politics is a result of Congress’s failure to recognize and serve its purpose more than it is the cause of that failure.

The need to get 60 votes on controversial legislation is one of the few forces that compels this kind of bipartisanship.

Of course, not all of the filibuster’s effects are subtle. It is intended to be a check against majoritarianism. During times when one party controls both houses of Congress and the White House, the filibuster gives the minority at least some voice. From 2017 through 2019, to take just one example, when Republicans had control of the executive and legislative branches, the filibuster stopped President Trump from ramming through laws to reform our immigration system.

I was opposed — morally, and as a matter of economic policy — to Trump’s posture towards immigration. Therefore, I was glad for the filibuster.

Those who would end the filibuster today should consider why they embraced it in the early Trump years.

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