Opinion
McConnell’s Rewriting of History
To make his case for the filibuster, he has essentially rewritten the history of the Senate.
Jamelle Bouie, The New York Times National Edition, January 30, 2021, A22.
Credit...Erin Schaff/The New York Times
On Tuesday, Mitch McConnell, now the Senate minority leader, spoke in defense of the
legislative filibuster.
“When it comes to lawmaking, the framers’ vision and our history are clear. The Senate
exists to require deliberation and cooperation,” McConnell declared. “James Madison
said the Senate’s job was to provide a ‘complicated check’ against ‘improper acts of
legislation.’ We ensure that laws earn enough buy-in to receive the lasting consent of the
governed. We stop bad ideas, improve good ideas and keep laws from swinging wildly
with every election.”
He went on: “More than any other feature, it is the Senate’s 60-vote threshold to end
debate on legislation that achieves this.”
It’s hard to take any of this seriously. None of McConnell’s stated concern for the
“lasting consent of the governed” was on display when Senate Republicans, under his
leadership, tried to repeal the Affordable Care Act by majority vote. Nor was there any
The Senate Filibuster: For and Against
interest in “deliberation and cooperation” when Republicans wanted a new round of
corporate and upper-income tax cuts.
If anything, the filibuster stymies that deliberation and cooperation by destroying the
will to legislate at all. It makes bipartisanship less likely by erasing any incentive to build
novel coalitions for particular issues. If, under the filibuster, there’s no difference
between 51 votes for immigration reform and 56 votes (or even 59), then what’s the
point of even trying? Why reach out to the other side if there’s almost no way you’ll
reach the threshold to take action? And on the other side, why tinker with legislation if
you know it’s not going to pass? When there’s no reason to do otherwise, why not act as
a rigid, unyielding partisan?
It’s obvious that McConnell’s commitment to the filibuster is instrumental. The
filibuster on executive branch nominations of appointees and federal judges was sacred
— he condemned the Democrats’ use of the “nuclear option” to get rid of it in 2013 —
until President Trump needed Neil Gorsuch on the Supreme Court and then it was byebye
to the filibuster for Supreme Court nominees that McConnell’s predecessor as
Senate majority leader, Harry Reid, had left intact. If the reconciliation process didn’t
exist, and Republicans needed 60 votes for upper-income tax cuts, there’s almost no
doubt McConnell would have killed the legislative filibuster in 2017, for the sake of his
party’s signature priority.
I’m not actually that interested in McConnell’s hypocrisy. I’m interested in his history.
To make his case for the indispensable importance of the legislative filibuster,
McConnell has essentially rewritten the history of the Senate. He has to create a new
narrative to serve his current interests.
The truth is that the filibuster was an accident; an extra-constitutional innovation that
lay dormant for a generation after its unintentional creation during the Jefferson
administration. For most of the Senate’s history after the Civil War, filibusters were
rare, deployed as the Southern weapon of choice against civil rights legislation, and an
occasional tool of partisan obstruction.
Far from necessary, the filibuster is extraneous. Everything it is said to encourage —
debate, deliberation, consensus building — is already accomplished by the structure of
the chamber itself, insofar as it happens at all.
In the form it takes today, the filibuster doesn’t make the Senate work the way the
framers intended. Instead, it makes the Senate a nearly insurmountable obstacle to
most legislative business. And that, in turn, has made Congress inert and dysfunctional
to the point of disrupting the constitutional balance of power. Legislation that deserves a
debate never reaches the floor; coalitions that could form never get off the ground.
In quoting Madison, McConnell frames the filibuster as part of our constitutional
inheritance. It is not. The filibuster isn’t in the Constitution. The Senate, like the House
of Representatives, was meant to run on majority rule.
Remember, the framers had direct experience with supermajority government. Under
the Articles of Confederation, each state had equal representation and it took a twothirds
vote of the states for Congress to exercise its enumerated powers. Without the
consent of nine states (out of 13), Congress could not enter treaties, appropriate funds or
borrow money. And the bar to amendment, unanimity, was even higher. The articles
were such a disaster that, rather than try to amend them, a group of influential elites
decided to scrap them altogether.
For a taste of this frustration, read Alexander Hamilton in Federalist no. 22, which
contains a fierce condemnation of supermajority rule as it was under the articles:
The necessity of unanimity in public bodies, or of something approaching toward it, has
been founded upon a supposition that it would contribute to security. But its real
operation is to embarrass the administration, to destroy the energy of the government,
and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or
corrupt junto, to the regular deliberations and decisions of a respectable majority.
Hamilton is especially angry with the effect of the supermajority requirement on
governance.
In those emergencies of a nation, in which the goodness or badness, the weakness or
strength of its government, is of the greatest importance, there is commonly a necessity
for action. The public business must, in some way or other, go forward. If a pertinacious
minority can control the opinion of a majority, respecting the best mode of conducting
it, the majority, in order that something may be done, must conform to the views of the
minority; and thus the sense of the smaller number will overrule that of the greater, and
give a tone to the national proceedings. Hence, tedious delays; continual negotiation and
intrigue; contemptible compromises of the public good.
Delegates to the constitutional convention considered and rejected supermajority
requirements for navigation acts (concerning ships and shipping), regulation of
interstate commerce and the raising of armies. Majorities would have the final say
everywhere except for treaties, amendments and conviction in an impeachment trial.
To make the Senate slow-moving and deliberative, the framers would not raise barriers
to action so much as they would insulate the body from short-term democratic
accountability. That meant indirect election by state legislatures, staggered terms of six
years and a small membership of two senators per state. And at ratification, that is
where the Senate stood: a self-consciously aristocratic body meant to check the House of
Representatives and oversee the executive branch, confirming its appointments and
ratifying its foreign agreements.
The filibuster doesn’t enter the picture until years later, as an accident of parliamentary
bookkeeping. In 1806, on the advice of Vice President Aaron Burr (who thought it
redundant), the Senate dropped the “previous question” — a motion to end debate and
bring an item up for immediate vote — from its rules. Without a motion to call the
previous question, however, an individual senator could, in theory, hold the floor
indefinitely.
It took 31 years for someone to actually do it. The first known filibuster took place in
1837, when several Whig senators tried unsuccessfully to block a Democratic bill
to reverse an 1834 censure of President Andrew Jackson and expunge it from the
congressional record. Even then, the filibuster was not widely used until the second half
of the 19th century, as the parties, and thus the Senate, grew more polarized along party
lines.
The filibuster as we understand it developed in the 20th century. In 1917, President
Woodrow Wilson called on Senate Democrats to reform the filibuster as a war measure
after Republicans successfully filibustered a bill to arm merchant ships. Democrats
obliged and created a “cloture” rule to end debate with a two-thirds vote of the
chamber. In 1975, the Senate reduced that threshold from two-thirds to three-fifths, or
60 votes in a 100-member body.
Throughout this time, filibusters were uncommon. It was perfectly possible for the
Senate to debate, deliberate and come to consensus without the supermajority
requirement McConnell and the Republican caucus have imposed on virtually all
legislation since 2009.
The point of comparison for the Senate as McConnell has shaped it is the middle of the
20th century, when a conservative coalition of Republicans and Dixiecrats made the
chamber a graveyard of liberal legislation and social reform. Consensus didn’t matter.
Power did. And it wasn’t until liberals wrested power from this coalition — in the House
as well as the Senate — that they could take the initiative and begin work on an
otherwise popular agenda.
There is no question the Senate is supposed to be slow, even sluggish. But it’s not
supposed to be an endless bottleneck. The framers wanted stability in government, not
stagnation. What we have now, with the filibuster intact, is a Senate that can barely
move.
This isn’t just a problem for President Biden and the Democratic Party; it’s a problem
for the entire constitutional order. Our system is built around Congress; Congress
makes laws, Congress holds the purse strings, Congress hands out mandates, Congress
checks the president and makes sure the judiciary stays in its lane.
When Congress doesn’t act, other actors take up the slack. The story of our democracy
these last 10 years is, in part, the story of how a listless, sclerotic Senate broke Congress
and pushed the other branches to govern in its stead, with the president and the courts
making as much policy as they can without congressional input, with all the
capriciousness, whiplash and uncertainty that can come from that.
If you don’t like presidents governing through executive order, then you should want an
active, energetic Congress that embraces its constitutional mandate to rule over the
whole country and direct its government. If you want that, you should oppose the
filibuster.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief
political correspondent for Slate magazine. He is based in Charlottesville, Va., and
Washington. @jbouie
Opinion
Mitch McConnell: The Filibuster
Plays a Crucial Role in Our
Constitutional Order
Democrats who want to change Senate rules for temporary political gain will rue the
day, as they have before.
Mitch McConnell, The New York Times Online Edition, August 22, 2019.
“America needs the Senate to be the Senate,” Senator Mitch McConnell, shown here in his office on Capitol Hill, writes.
Credit...Damon Winter/The New York Times
“You’ll regret this, and you may regret this a lot sooner than you think.”
That was my warning to Senate Democrats in November 2013. Their leader, Harry Reid,
had just persuaded them to trample longstanding Senate rules and precedents. Now that
some Democrats are proposing further radical changes to the Senate’s functioning, it is
instructive to recall what happened next.
To confirm more of President Barack Obama’s controversial nominees, Democrats took
two radical steps. First, since the nominees had proved unable to earn the 60 votes
necessary to overcome a filibuster, Democrats sought to change Senate rules so that
ending debate on most nominations would require only a simple majority. Second,
lacking the two-thirds supermajority needed to change the rules normally, Democrats
decided to short-circuit standard procedure and muscle through the new rule with a
simple majority as well — the first use of the infamous “nuclear option.”
Republicans opposed both moves on principle. Strong minority rights have always been
the Senate’s distinguishing feature. But when appeals to principle fell on deaf ears, I
tried a practical argument. The political winds shift often, I reminded my Democratic
friends. I doubted they’d like their new rules when the shoe was on the other foot.
Unfortunately, Senate Democrats bought what Senator Reid was selling — but buyer’s
remorse arrived with lightning speed. Just one year later, Republicans retook the
majority. Two years after that, Americans elected President Trump. In 2017, we took the
Reid precedent to its logical conclusion, covering all nominations up to and including
the Supreme Court.
So this is the legacy of the procedural avalanche Democrats set off: Justice Neil Gorsuch,
Justice Brett Kavanaugh and 43 new lifetime circuit judges — the most ever at this point
in a presidency. The consequences of taking Senator Reid’s advice will haunt liberals for
decades.
A number of Democrats publicly regret their 2013 vote. One calls it “probably the
biggest mistake I ever made.” Nevertheless, the far left now wants Democrats to touch
the hot stove yet again. This time, they want to erase the Senate’s 60-vote threshold
A Democratic assault on the legislative filibuster would make the nomination fights look
like child’s play. That’s because systematically filibustering nominees was not an old
tradition but a modern phenomenon, pioneered in 2003 by Democrats
who opposed President George W. Bush. When Republicans followed suit and held up a
handful of Obama nominees the same way, Democrats could not stomach their own
medicine and began a “nuclear” exchange that Republicans had to end.
The back-and-forth was regrettable, but the silver lining is that the failed experiment
Democrats started in 2003 is now over. The Senate has taken a step back toward its
centuries-old norms on nominations: limited debate and a simple majority threshold.
On legislation, however, the Senate’s treasured tradition is not efficiency but
deliberation. One of the body’s central purposes is making new laws earn broader
support than what is required for a bare majority in the House. The legislative filibuster
does not appear in the Constitution’s text, but it is central to the order the Constitution
sets forth. It echoes James Madison’s explanation in Federalist 62 that the Senate is
designed not to rubber-stamp House bills but to act as an “additional impediment” and
“complicated check” on “improper acts of legislation.” It embodies Thomas Jefferson’s
principle that “great innovations should not be forced on slender majorities.”
The legislative filibuster is directly downstream from our founding tradition. If that
tradition frustrates the whims of those on the far left, it is their half-baked proposals
and not the centuries-old wisdom that need retooling.
Yes, the Senate’s design makes it difficult for one party to enact sweeping legislation on
its own. Yes, the filibuster makes policy less likely to seesaw wildly with every election.
These are features, not bugs. Our country doesn’t need a second House of
Representatives with fewer members and longer terms. America needs the Senate to be
the Senate.
I recognize it may seem odd that a Senate majority leader opposes a proposal to increase
his own power. Certainly it is curious that liberals are choosing this moment, when
Americans have elected Republican majorities three consecutive times and counting, to
attack the minority’s powers.
But my Republican colleagues and I have not and will not vandalize this core tradition
for short-term gain. We recognize what everyone should recognize — there are no
permanent victories in politics. No Republican has any trouble imagining the laundry
list of socialist policies that 51 Senate Democrats would happily inflict on Middle
America in a filibuster-free Senate.
In this country, radical changes face a high bar by design. It is telling that today’s leftwing
activists would rather lower that bar than produce ideas that can meet it.
I am known for appreciating an old Kentucky saying: “There’s no education in the
second kick of a mule.” Some Senate Democrats seem to agree. Thirteen of their ranking
members on Senate committees have publicly stated that they oppose tampering with
the legislative filibuster.
But the Democratic Party is racing leftward, with presidential debates that make the
2008 exchanges between Barack Obama, Hillary Clinton and John Edwards look
downright conservative by comparison. The party is rallying around the very kinds of
radical schemes that the Constitution intentionally frustrates. And rather than moderate
or engage in persuasion, many on the left seem more tempted to rewrite the rules once
again.
A majority of the Democratic presidential candidates are flirting with ending the
legislative filibuster. Even more irresponsibly, Chuck Schumer and Dick Durbin, the top
two Senate Democrats, have signaled openness as well. On this subject, like so many
others, what was recently fringe nonsense seems to be rapidly becoming mainstream
Democratic dogma.
I hope the saner voices among Democrats can help their compatriots see reason. Unless
and until that happens, Americans must never let this radical movement gain enough
power to vandalize the Senate.
If future Democrats shortsightedly decide to reduce the Senate to majority rule, we’ll
have lost a key safeguard of American government.
And — stop me if you’ve heard this one — they’d regret it a lot sooner than they think.
Mitch McConnell (@senatemajldr), a Republican from Kentucky, is the Senate Majority Leader.
Opinion
Harry Reid: The Filibuster Is
Suffocating the Will of the American
People
To save our country’s future, Democrats must abolish this arcane Senate rule.
Harry Reid, The New York Times Online Edition, August 12, 2019.
Senators Harry Reid, left, and Charles Schumer in 2013 supporting the abolishment of
the filibuster for most presidential appointees.Credit...Stephen Crowley/The New York
Times
I am not an expert on all of government, but I do know something about the United
States Senate. As the former majority leader, I know how tough it is to get anything
through the chamber, which was designed to serve as the slower, more deliberative body
of the United States Congress.
But what is happening today is a far cry from what the framers intended. They created
the Senate as a majority-rule body, where both sides could have their say at length — but
at the end of the day, bills would pass or fail on a simple majority vote. In their vision,
debate was supposed to inform and enrich the process, not be exploited as a mechanism
to grind it to a halt.
The Senate today, after years of abusing an arcane procedural rule known as the
filibuster, has become an unworkable legislative graveyard. Not part of the framers’
original vision, the modern filibuster was created in 1917. The recent use of the filibuster
— an attempt by a minority of lawmakers to delay or block a vote on a bill or
confirmation — has exploited this rule, forcing virtually all Senate business to require 60
of the 100 senators’ votes to proceed. This means a simple majority is not enough to
advance even the most bipartisan legislation.
Republicans over the past decade — knowing their policies are unpopular and that
obstruction benefits them politically — perfected and increased the gratuitous use of the
filibuster. Even routine Senate business is now subject to the filibuster and Republicans’
seeming obsession with gridlock and obstruction.
The Senate is now a place where the most pressing issues facing our country are
disregarded, along with the will of the American people overwhelmingly calling for
action. The future of our country is sacrificed at the altar of the filibuster.
Something must change. That is why I am now calling on the Senate to abolish the
filibuster in all its forms. And I am calling on candidates seeking the Democratic
nomination for president to do the same.
If a Democratic president wants to tackle the most important issues facing our country,
then he or she must have the ability to do so — and that means curtailing Republicans’
ability to stifle the will of the American people. It’s time to allow a simple majority vote
instead of the 60-vote threshold now required for legislation. When the American
people demand change and elect a new Senate, a new majority leader must be able to
respond to that call and pass legislation.
The list of issues stalled by the Senate filibuster is enormous — and still growing.
People ask how it is possible that America is failing to lead on climate change, even as
we rapidly approach a catastrophic transformation of our planet that will wreak
irreversible havoc on millions of Americans. The answer: the filibuster.
People ask how America — a country that used to set the example for the world on
human rights — could tear families apart at the border and put children in cells
so overcrowded they cannot lie down. They ask how our country can allow those
children to be lost in a labyrinthine system, possibly never reunited with family again.
The answer remains the same: the filibuster.
People ask why the federal government hasn’t lifted a finger to stop the growing
epidemic of gun violence, despite Americans’ demands for action and
overwhelming support for common-sense reforms like universal background checks and
bans on high-capacity magazines. They ask how we can stand by as the country suffers
tragedy after tragedy and averages more than one mass shooting every single day. The
answer once again: the filibuster.
If not for abuse of the filibuster, we would have passed major legislation addressing
some of our country’s most pressing issues under President Obama: Millions of
undocumented immigrants brought to this country as children would have a pathway to
citizenship through the Dream Act; millions of Americans would have a government-run
public option as part of health care reform; and the American Jobs Act and the “Buffet
Rule” requiring the wealthy pay their fair share of taxes would be law, further
strengthening the economy and helping to address the issue of income inequality.
If the Senate cannot address the most important issues of our time, then it is time for
the chamber itself to change, as it has done in the past.
I didn’t come to this decision lightly. In bygone eras, the filibuster was a symbol of the
Senate’s famed role as the cooling saucer for legislation and ideas from the more hottempered
House of Representatives. The Senate was known as “the world’s greatest
deliberative body,” a place where collegiality and compromise held sway and issues
could be discussed rationally and agreements could be reached. The 60-vote threshold
reflected those sentiments.
Sadly, we are not living in the same legislative world anymore.
As majority leader of the Senate, facing the strenuous obstruction of President Obama’s
nominees by Republicans hoping to cripple his administration, I decided in 2013
to abolish the filibuster for most presidential appointees. Because of this change, we
were able to confirm more of President Obama’s judicial nominees than we would have
been able to otherwise, leaving President Trump fewer vacancies to fill.
I kept the filibuster in place for Supreme Court nominees and legislation, believing the
filibuster was necessary for other Senate business because of the chamber’s deliberative
nature. Republicans, after loudly denouncing the 2013 change, went a step further in
2017 and abolished the filibuster for Supreme Court nominees as well.
I previously assumed, perhaps wrongly, that the fever would eventually break — that
Republicans would be forced by the American people to put their country above their
party. I assumed the calls for action on critical issues would be heard — that collegiality
in the Senate would prevail.
That never happened. If anything, the Senate is more gridlocked and polarized than
ever.
As I said in 2013, the Senate is a living thing, and to survive, it must change — just as it
has throughout the history of our country. The American people elect leaders to address
the issues facing our country, not to cower behind arcane parliamentary procedure.
This era of obstruction and inaction must come to an end, and I urge our nation’s
leaders to join me in calling for the abolition of the filibuster. It’s time for the Senate to
start working again.
Harry Reid is a former United States Senator from Nevada, serving from 1987 to 2017. He led the
Senate’s Democratic Conference from 2005 to 2017 and was the Senate Majority Leader from 2007
to 2015.