The Senate doing away with the filibuster for Supreme Court nominees was a big deal.
It was the second time within the past four years that the upper chamber has made the decision to chip away at the supermajoritarian character of its decision-making.
For several decades, the number 60 has loomed large over every decision that the Senate has made — from approving of judicial nominees to legislation. With the end of the filibuster on Supreme Court nominees, it is easy to see how the Senate could soon take the next logical step and allow a majority to get rid of the practice altogether. If they do, the Senate will look that much more like the House of Representatives.
Although Thursday’s decision instantly drew predictable warnings that it represented a devastating blow to an institution that takes pride in being a place for politics to “cool off,” it might not be such a bad thing. It might, actually, be a moment of progress.
For, in most cases, the filibuster has been seen as a source of obstruction. Just as important, until the 1970s, the filibuster was not used as a normal tool of political combat, and decisions in the upper chamber where usually made through a clean majority.
Liberals spent much of their time during the 1950s and 1960s calling for filibuster reform. In those decades, when the filibuster was primarily reserved for high-profile issues like civil rights, liberal Democrats didn’t think that it was a very good thing. Civil rights advocates like Democrats Paul Douglas and Hubert Humphrey blasted the filibuster as an “undemocratic technique” where a small majority in a chamber that already gave disproportionate power to senators from small states used their right to talk to stop action on key social justice issues.
They did not realize that the filibuster was still only being used in limited fashion, compared with what was about to come.
Liberals constantly pushed for reforms that would allow a majority to end debate, just as the practice was in the House, but with no success. The problem was that conservative senators filibustered filibuster reform. The exception took place in 1975 when liberals were able to maneuver to lower the number of senators required to obtain cloture from two-thirds of the chamber (67) to three-fifths (60). Budget reforms in 1974 also created the reconciliation process, which protected budgetary packages from a filibuster.
The reforms didn’t work so well. Since the 1970s, the use of the filibuster increased dramatically, and it became a tool of normal partisan combat. senators used the filibuster to block progress on big legislation, such as health care, and for personal and partisan vendettas against particular members. The result was that in recent years it has become normal to expect that 60 votes are needed to pass a bill through the Senate. In an era of narrow majorities and intense partisanship, this has meant that most issues don’t gain any traction.
Moreover, the Senate changed the practice so that you don’t have to actually “filibuster” to filibuster. There were no more long and dramatic speeches. There were no more cots set up for senators to sleep. A Senate minority simply announced that they had the numbers of conduct a filibuster and that’s it. The era of Mr. Smith holding the floor was all over. That lowered the stakes of conducting a filibuster and increased the incentives for the minority to use this.
Republicans proved to be much more willing to filibuster than Democrats and under President Obama used it to bring all legislative progress to a halt. This was one of the reasons Senator Harry Reid agreed to the “nuclear option” in 2013 and permitted a majority of the chamber to change the rules on non-Supreme Court justices and Cabinet appointees. Democrats had become frustrated with how the filibuster had allowed the GOP to gridlock the appointment process, leaving huge numbers of vacancies on the courts.
While they didn’t extend the reforms to legislation, there were many Democrats who wanted their party to move in that direction. They insisted that the filibuster has not done much good for the Senate and it certainly has not benefited Democrats.
It is important to remember that before the era when the filibuster became a normalized tool of political combat, the Senate enjoyed some historic periods of progress, such as the construction of the New Deal and the triumph of World War II. It might just be that even though many Democrats fear Thursday’s action will open the door in the short-term to Republicans’ success, in the long-term this might create a Congress that is more capable and efficient at handling the urgent issues of the day.
From the perspective of a Democrat it might even diminish the power of senators from small states, which tend to be Republican, and make the chamber more accurately reflect the wishes of the nation. Though Democrats might be lamenting the end of the filibuster right now, they might actually want to celebrate with a view toward how governance will work over the long run.
Republicans also might end up appreciating a Senate with less filibustering. After all, they constantly decry the inefficiency of government and the slowness of decision making. If you just need a majority to get things done, we might see Washington better able to move forward on decisions in a way that the 60-vote requirement would not allow.
The biggest complaint about weakening the filibuster has been that the Senate will look too much like the House, an intensely partisan and divided chamber. The truth is that the horse has already left the stable. There have been very few examples where senators haven’t already simply voted the party line. Party leaders have used tools such as leadership PACS to maintain discipline among members, and the level of civility has been declining for some time.
Like it or not we already have a Congress where partisanship dominates both chambers and where the filibuster has been little more than a mechanism to make gridlock even worse.