Habit is not the same as tradition

We need to talk about what we're really talking about when we talk about the filibuster: our desperate need for our leaders to govern.

Our collective understanding of the Senate as the slower moving, more deliberative body in the United States Congress is more narrative than design. When we think about the dysfunction and seeming ungovernability of our country, we often point to procedure and process as the culprit. No matter how much weight we put on process, updating procedure is an incomplete solution to our ungovernability. That said, it may be a key first step in the direction of more productive leadership, and we should begin where we can: enter the mysterious and powerful filibuster.

An abbreviated history: the filibuster is not a Senate rule. It is shorthand for the conceptual idea of blocking the process of legislating by refusing to end the debate — by essentially hijacking the conversation and not ceding the floor so the regular process of voting cannot continue. The reality is that the possibility of the filibuster was created not by the founders but by removing an original Senate rule that required a simply majority to end debate in 1806. This opening paved the way for increased use of holding the floor through the Civil War era when the term filibuster first came into common usage in 1853. The modern Cloture Rule (Senate Rule 22) most associated with our modern experience of the filibuster was codified as a formal mechanism to end debate during WWI and originally required a 2/3 majority of the Senate.

The filibuster is not some founding democratic principle, and it is not even a consistent tradition. It is a concept that’s been used differently over time to mean different things by different groups for different political ends. And justification for keeping or killing the filibuster has been just as ephemeral. Do we care about democratic questions like “the tyranny of the majority” expressed in The Federalist Papers, the importance of comprehensive representation, the value of bipartisan consensus, and the need (or desire) for broader, stronger agreement on complex questions? Absolutely. Have those rhetorical positions been used routinely, repeatedly, and disingenuously to justify corruption, protect the least democratic features of the republic, and most socially damaging traditions throughout American history? Unequivocally yes.

In today’s American civic life, if it ever was, the filibuster is no longer a tool to encourage bipartisanship: it is now a habit and feature of gridlock. So if in modern American, gridlock is good for your political agenda (if for instance you’re a minority party desperately clinging to minority power and need to leverage the least democratic features of our republic) then you need the filibuster because you need gridlock to protect your unpopular ideology. If you want to grow and advance our public systems to serve and invest in people, then you need to govern. Filibuster is not a tool for effective governing.

Our habits have become a messy combination of hyperpartisan, polarized nonsense and legalized corruption. Longer terms and appointment by legislatures were supposed to be the way to make the Senate less political and more deliberative. It is not equally representative and was never meant to be as it was a mechanism of enshrining state sovereignty and equality (not citizen equality) in our republic. But tying legislative leaders’ ability to legislate by procedural handcuff was never the design either. We need the Senate to do more of the people’s business, to focus more on what matters most to citizens, and Congress over all to function as a more democratic institution. Let majority drive procedure AND ensure that the rules meant to constrain corrupting influences of power-seeking and corporate-capture like gerrymandering, campaign finance, and ethics are strong enough to really guide healthy service-oriented leadership. Even talking about the filibuster and digging into history is a bit of a red herring. Yes, fine, fuck the 60-vote cloture rule — it’s just a habit of our modern, hyperpolarized politics. (Although actually changing Senate rules requires 2/3 of the Senate so that isn’t even what anyone is proposing about they talk about “ending the filibuster”. The so-called nuclear option is actually a mechanism of creating new precedent for the application of existing Senate rules by separate parliamentary procedure called “reform by ruling” that would be used to reduce the number of votes necessary for a cloture motion in a particular circumstance like Supreme Court nominees — or voting rights legislation.) But nonsense roadblocks wrapped up in rhetorical justification of tradition will take another form unless we talk about what we are talking about here and don’t get wrapped up in “the filibuster debate”.

We need a Senate focused on delivery and designed to deliver — part cultural, part procedural. And it needs to be partnered with a more effectively representative House by addressing gerrymandering and apportionment. Pushing the Senate into procedural shape first? Fine. We unequivocally need leaders to lead and stop being obsessed with insider procedural arcanity that just reinforces people’s sense that our leaders are out of touch with what matters to them. But we need to be careful about expecting one procedural change (albeit a major one) to solve our gridlock problems without thinking more broadly about why government isn’t governing — and what we want that to mean.