Joseph J. Ellis and Caroline Grady: Fixing the Filibuster

This article originally appeared in the Daily Hampshire Gazette on Thursday, January 3, 2013.


AMHERST — Today, the newly elected Senate will convene, and its first order of business will be to establish the procedural rules for the next two years. While this sounds like a tedious piece of administrative shuffling, it will in fact be the most consequential Senate debate of this century.

The issue at stake is the rules governing the filibuster, a Senate procedure that dates back to the presidency of Andrew Jackson. In its earlier manifestations the filibuster was a delaying tactic designed to allow the minority in the Senate to block legislation by holding the floor. Think of Jimmy Stewart in the classic film Mr. Smith Goes to Washington. The filibuster record was set by Strom Thurmond of South Carolina, who talked for 24 hours and 18 minutes in opposition to the Civil Rights Act of 1957.

Throughout most of American history the filibuster was only invoked on rare occasions, because it required a beleaguered minority, acting on what it regarded as principle, to shut down the Senate. The stakes had to be high to justify such conspicuous intransigence.

Over the last two decades, however, the filibuster has become the rule rather than the exception, a routinized procedure whereby one anonymous senator can threaten a filibuster without actually filibustering. As a result, virtually all legislation requires a super-majority of 60 votes in the Senate. There are several sources of gridlock afflicting the current Congress, but the major source is the filibuster, which allows the minority to block the will of the majority.

Senate Majority Leader Harry Reid is likely to propose a procedural change that requires a return to the days when a filibuster was, well, a filibuster. The 60-vote requirement would not be automatic, and the minority — in this case the Republicans — would have to do the Jimmy Stewart thing in order to block legislation they oppose. Doing so would mean that filibusters were awkward instead of easy, rare instead of frequent.

We think this step backward would really be a step forward. But we worry that Reid’s proposal will fail because Democrats will flinch, foreseeing the day when they will become the minority and regret the loss of leverage the filibuster affords. It is also a question of the Senate’s deep-rooted sense of its political significance, which the filibuster in its current form tends to amplify.

But there is a deeper issue at stake, namely whether the filibuster, either in its more restricted or expansive version, is constitutional. The Senate, for sure, is free to write its own rules, but not when those rules conflict with the language of the Constitution. And the Constitution is quite specific about the issues requiring a super-majority in the Senate: the approval of treaties, the ratification of constitutional amendments and the impeachment of presidents. All ordinary legislations according to the Constitution requires only a majority vote in the Senate.

And there was a reason for that policy. The founders were fully aware of the gridlock that had paralyzed the Congress under the Articles of Confederation, which required super-majorities for any significant legislation.

They were determined not to make that same mistake in the Constitution, and therefore took care to enumerate those issues that required more than a majority. The Senate, we believe, cannot alter the original intentions of the founders by merely playing with their procedures.

We give the last word to Alexander Hamilton, who in Federalist 22 put it in a way that sounds eerily relevant to our time. It was absurd, Hamilton wrote, “that the majority, in order that something must be done, must confirm to the rules of a minority,” which substituted “the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junta, for the deliberations and decisions of a respectable majority.”

And to the extent the United States claims to be a democracy, we might add, all majorities are inherently respectable, and all minorities should only win at the ballot box by transforming themselves into majorities.

Joseph J. Ellis, a retired Mount Holyoke College professor, is the author of “Founding Brothers” and a lecturer at the Commonwealth Honors College, University of Massachusetts Amherst, where Caroline Grady is a senior.