Friday, June 25, 2021

The Best Arguments Against the Filibuster

Stephen Griffin

 Debates about the Senate filibuster tend to be tied to current events.  They are conducted in op-ed style and turn on whether the filibuster is more or less justified given immediate concerns.  The latest round shows that in this arena the filibuster has defenders even, believe it or not, among law professors.

Yet there is a largely unnoticed separate scholarly debate about the filibuster, as academics have been assessing it for decades, whether on the high plains of political theory, along the main lines of historical inquiry, or in terms of tracing the causes of our contemporary policy difficulties.  For some reason, these inquiries are not featured even as background to the op-ed debate.  Americans should nonetheless pay attention to these scholarly findings.  The implications of these varied academic assessments for the filibuster’s normative underpinnings are far more negative than is usually appreciated.

As an example, the eminent political theorist Robert Dahl argued a number of years ago that rules requiring supermajorities in the legislative process could be justified as deviations from majority rule only on the premise that they served a consensual goal such as the preservation of individual or minority rights.  If Dahl’s argument is accepted, things go south rapidly for the filibuster, as experience has shown that it has worked against the rights of minorities, especially African-Americans.

Dahl’s argument helps us understand why the filibuster’s undoubted role in preserving the system of white supremacy has relevance today.  Perhaps the most notorious instance was not opposition to the Civil Rights Act of 1964 but the defeat of the Dyer anti-lynching bill in the 1920s.  Then as now, the filibuster did not literally mean that enactment of the bill was tied to assembling a supermajority of the Senate.  Rather, it meant that no vote took place at all.  No vote meant no true debate on lynch law, where the question of policy change and responsibility for that change would be squarely before the Senate.

 The filibuster enabled a minority of senators to stifle achievement of equal rights for minorities in the nation as a whole.  That’s worth a second thought.  Without the filibuster, majorities in both Houses of Congress would have protected minority rights.  The majoritarian process (not just the courts!) would have worked to enforce constitutional rights.  Instead, the filibuster enabled the continuation of a regime which systematically destroyed equal rights.  The benefit the filibuster would have to confer in the present to outweigh this past destruction of rights would have to be substantial indeed.

 These observations reveal another problem with the quality of the current op-ed debate.  No one seems interested in any on-balance historical assessment of the normative desirability of the filibuster.  The discussion is almost entirely weighted toward the present.  So let’s go there.  Hasn’t repeated resort to the filibuster over the last several decades profoundly shaped our present?  A good example comes from Jacob Hacker and Paul Pierson’s valuable study Winner-Take-All Politics.  They identify the filibuster as one of the key factors behind the growth in inequality in American society.  They point to uses of the filibuster to resist efforts to decrease inequality extending as far back as the late 1970s.  Of course, if you’re happy with the very unequal status quo, you probably don’t think this is a problem.  But at the very least their discussion illustrates the pervasive influence the filibuster has had on the policy status quo.  To my knowledge, no one has attempted a full review of the policy effects of the filibuster.  It’s not easy because the influence of the filibuster goes beyond the defeat of particular bills to how other measures were compromised, perhaps fatally, in the effort to achieve a supermajority.

Hacker and Pierson’s book illustrates that the policy effects of the filibuster go well beyond civil rights and voting rights.  It’s highly likely that resistance to change in environmental and immigration policy, to name just two further examples, have been affected significantly by the need to get to 60 votes in the Senate.  Most liberals are not happy with the status quo, but I doubt many are familiar with the full scope of the outsize influence the filibuster has wielded over contemporary policy outcomes.  It seems to me that only someone who is deeply and romantically attached to the status quo could think the filibuster has been beneficial.

This policy influence the filibuster has had has undoubtedly played a role in convincing many Americans that government will never work to their benefit.  This is how the repeated use of the filibuster hurts trust in government, a key variable that numerous scholars have identified as essential to policy change, especially efforts to attack racial inequalities. Bias toward inaction undermines the trust necessary for government, thus promoting a vicious cycle.  Enabling senators to avoid votes (little wonder why the filibuster remains popular on Capitol Hill) means they can avoid responsibility for making decisions.  In addition, we lose the learning curve that results from actually adopting policies when none are enacted in the first place.

Returning to Dahl, what happens if his premise about the justification of the filibuster is not accepted?  At that point, the justification becomes vulnerable to a reductio.  If requiring 60 votes to enact legislation promotes any desirable goal (such as bipartisanship), why stop?  How about reaching for the real consensus we would achieve if we specified 67 votes?  80?  Indeed, how about dropping the requirement that a senator invoke the filibuster and simply write a general supermajority rule into the Constitution itself?  No?  As the new constitution produced for Democracy magazine showed, I believe any fair debate would rapidly conclude that the framers were right not to use supermajority rules as part of the legislative process.  Of course, there is a supermajority rule required to overturn a presidential veto, although its basis can certainly be questioned as well.  But this rule arises in the context of checking and balancing another branch.  The check and balance in Congress is provided by bicameralism, a point which should spur us to ask whether the filibuster is giving the Senate too much power in our system.  Supermajority rules simply give recalcitrant minorities too much power – and not simply to veto legislation, but to avoid responsibility for doing so in the first place.

So, what are the best arguments against the filibuster?  In light of contemporary value commitments and actual experience, it’s impossible to justify as a check on majority rule.  In fact, it helps white minorities oppress minorities of color.  It freezes the policy status quo for decades in ways that are profoundly harmful and might have even undermined trust in the constitutional system as a whole.  It is thus not only unjustified from the perspective of political theory and practical policy argument but destabilizing as well.  It should have been placed in our national rear view mirror decades ago.

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