The Founders And The Filibuster

Among the many forgotten lessons of America’s past is the abysmal failure of the nation’s first constitution, the Articles of Confederation. Thanks to the widespread absence of effective civics instruction, much of the public is unaware of the very existence of America’s first effort at nation-building, let alone the reasons that initial effort failed.

The Articles had numerous flaws–mostly attributable to the reluctance of the colonies to cede authority to a central government. Probably the best-known weakness of that first effort was the inability of the new central government to levy taxes. The central government could ask for revenues–for example, monies to retire debt amassed during the Revolutionary War–but if a state didn’t want to pay, it didn’t pay, and the federal government could do nothing about it.

The lack of a dependable revenue stream wasn’t even the worst of it. Under the Articles, any changes to the structure or operations of government needed a unanimous vote of the 13 colonies–and most other policies required the concurrence of a super-majority. Those provisions made governing impossible. When the Founders met in Philadelphia to replace the fatally-weak Articles with the Constitution, changing that unworkable super-majority requirement was  high on their “to do” list.

What we know of that history and the Founders’ antagonism to government by super-majority should inform our approach to the current iteration of the Senate filibuster.

Ezra Klein recently hosted Adam Jettleson, a longtime Senate staffer, on his podcast, and reported their conversation in a column for the New York Times. Jettleson pointed out that one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.

In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.

Republicans are well poised to take back majorities in both the House and Senate — all they need is a handful of seats to do so. So they have every rational, political incentive to block Biden from achieving any victories. A program that would cut child poverty massively would be a huge victory for Biden. And the ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity.

Jettleson reminded listeners that the Framers had anticipated this very situation. They identified this huge drawback with supermajority thresholds in 1789, when they had direct firsthand experience with the Articles of Confederation.

In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.

As Klein observed, bipartisanship is something the majority wants, but the minority has no incentive to give–something  Mitch McConnell certainly understands. During the first years of the Obama administration, McConnell knew he could win the majority back by sabotaging its ability to govern–that the majority party will inevitably get the blame for gridlock, no matter how unfair that may be.

The mischief being done by the current iteration of the filibuster has become obvious. It continues to prevent the Senate from functioning properly–for that matter,  as Jettleson documents in his recent book, “Kill Switch,” it pretty much keeps the Senate from functioning at all.

A mountain of evidence suggests that it is long past time to get rid of the filibuster.

The question, then, is why Democratic senators like Joe Manchin and Kyrsten Sinema continue to defend it.

22 thoughts on “The Founders And The Filibuster

  1. Was there a time, or am I dreaming, when Democrats and Republicans would compromise and craft legislation that would benefit the entire citizenry? I thought I saw that happening on a regular basis. Everyone was happy with the result although never entirely so; everyone could live with it without going crazy. When did this switch to a polity of winner-take-all? This is not a rhetorical question. We need to drive a stake through the heart of this crippling way of constituting ourselves as a people.

  2. Language here is important. The word “mischief” to describe what the Senate under McConnell has wrought does not fit. “Mischief” is what a five year old does when he pulls the dog’s tail. What Republicans have done at McConnell’s behest has caused great suffering to the people and destroyed whole parts of the government, not to mention the intentional destruction of the people’s trust in their government. No, it is not “mischief”. It is more like legalized insurrection against one’s own country.

  3. Several times in the past, I have seen comments from Senators who have been in office for decades, that they are reluctant to do away with the filibuster because they know that when they are in the minority, it gives them some leverage. They can force the majority party to negotiate in order to get what it wants. I’m sure that is why Manchin refuses to vote to do away with the thing. He thinks he is playing the long game.

  4. Theresa is correct in her statement that McConnell’s powers in the senate are “more like legalized insurrection against one’s own country”. He managed to accomplish this with the Republican majority during President Obama’s administration which, as Bob G correctly remembers “Democrats and Republicans would compromise and craft legislation that would benefit the entire citizenry”. That memory is one we share and the basis for Barack Obama’s book “The Audacity of Hope”. All McConnell needed to take full control over this country was Donald Trump to provide the approval of open White Supremacy and the easy takeover of the weakening Republican party to breathe life into it again. The Trump Republican party has combined chosen sections of Articles of Confederation, the Sovereignty Commission and Putin’s Dictatorship and added the evangelical approval to appeal to those 70 MILLION voters. McConnell has stated he is only interested in Republicans who can be elected in 2022 and those 43 Republican Senators do not consider January 6th to be an armed insurrection or that Trump was their leader.

    I have read repeated comments and actual news reports that Trump has lost his power over the Republicans and that he will soon be charged with criminal and civil law suits in numerous courts but so far only comments and reports are in evidence, no action. When confronted with complaints that President Biden has not been vocal about his views on the impeachment, he stated he was leaving that up to the Senate; that is the Senate’s job. The Senate has again failed us; I believe that is why President Biden gave them “enough rope to hang themselves”. Filibuster is a minor cog in the wheels of this government when armed insurrection is aided by our own Senate who continue supporting Trump and all he stands for. The Founders were not prophetic; they could not possibly foresee where we are today with Articles of Confederation or the Constitution of the United States of America.

  5. The Koch network controls around 23 states or 46 senators. The Koch networks ATM, called Donor’s Trust, was one of the funders of the organized/planned attack on Capitol Hill. They’ve been attacking our government since FDR underwrote the New Deal.

    Yet, for some reason, our government continues passing laws giving the Koch Network favorable laws/policies/reforms. I’ve read many articles about the insurrection, including forming a committee to “fact-find.” Still, I’ve not read a single word about charging the insurrection financiers or charging the senators involved. Why is that?

    When asked, Nancy Pelosi responded, “Why need to have a strong Republican Party in this country.”

    Really?

    Since when is it the job of Congressional Democrats to protect the GOP from their own destruction?

    The rot that festers in Washington will continue under our corrupt two-party system representing the Oligarchy – not the people. And yes, they have lots of excuses and like to blame each other for not reaching a consensus regarding matters impacting the people.

    Throw a MIC/IC/Surveillance State bill on the floor, and they all come into lockstep with one another. Wall Street bailouts? Yes, we can do that, too.

    It’s political theater for the entertainment outlets.

  6. Let me pose a question. How screwed up are we as a country that the people we elect for public office seem to believe that they are unemployable elsewhere? They contort their principles to keep their jobs. That’s just sad.

  7. I suspect the filibuster stays in place because each side fears what the other would do without it. I think the Republicans are probably the winners without it. Dems tend to fight among themselves and have different goals to each other. Republicans are remarkably good at falling into line and voting together (for awful things, it must be said).

    Either way, I still agree that it should go. When the filibuster was a thing that was rarely used and required personal effort I could see its value. When all you have to do is say “I’m filibustering” and that kills a bill forever (and you do it every day), that’s no longer a tool, it’s just arson.

    When children can’t play nice with their toys, you take their toys away. Quite a few toys need to go.

  8. Right on, Sheila. I hope you have readers from Arizona and W. Virginia who will share this with Senators Sinema and Manchin.

  9. I don’t understand why the Democrats are so eager to get rid of the filibuster. The first two years of the Trump presidency, we had a Republican House and Senate. What stopped Trump during those years? Yes, well his incompetence, but also the Senate filibuster which gave Senate Democrats enormous power to stop the Trump train.

    Blaming the filibuster for the Senate’s inability to function ignores the fact we had a filibuster during years when the Senate did function. I think the filibuster is being made into a scapegoat when there are much deeper problems with our political system.

    Stripping the filibuster from the Senate means it will operate like the House. Why would anyone want that?

    The Constitution has several places where supermajorities are required. Constitutional amendments have to pass by 2/3 of both houses before going to the states for ratification. Removal after an impeachment trial, requires a 2/3 vote. To approve a treaty, 2/3 of the Senate must approve. So I don’t buy the Founders decided after the Articles of Confederation that supermajorities were bad. It’s just they had supermajority requirements for passing laws (2/3) and for amending the Articles (unanimous vote) which were not workable.

  10. As I have posted here before. I think it is imperative for the Democrats to abolish the filibuster, if they want to get any of Biden’s legislation passed and not to mention control of both the Senate and House in 2022.

    The fact there is a filibuster at all in the Senate was sort of an unintended consequence of the wrong headed advice of Aaron Burr in 1805 (who BTW at the time had just been indicted for the murder of Alexander Hamilton). Until Burr told them to do away with the then rule because it was duplicitous and wasn’t needed, it took only a simple majority to cut off debate. In fact, all Senate business was done by a simple majority vote. Contrary to Mitch and others, the filibuster was not part of the original framers’ intent or design, and cloture requiring a super-majority wasn’t a formal rule until 1917 (some more interesting history).

    https://www.brookings.edu/testimonies/the-history-of-the-filibuster/

    In any event, it’s hard to know if either Manchin or Sinema (and there might be other Dems opposed too) can be convinced to kill it it in its entirety and go back to the original rule requiring only a simple majority to end debate.

    A baby-step might be to go back to the original form of the “filibuster” prior to the “two-track” system adopted in 1970, which has made it virtually impossible for the Senate to pass any legislation without a 60 vote super-majority. That previous version required at least one Senator to be present on the floor talking continuously at all times, and it also meant the other Senators supporting the filibuster had to either be in the Chamber or very close by at all times because the majority could make a motion for cloture at anytime requiring an immediate vote.

    As I understand it, those filibusters usually didn’t last long. Not only was there the physical toll, but nothing else got done. Now virtually all you have to do is say the magic word: “filibuster.” In the afternoons, they all go about their regular business, and go home at night. If there is going to be a “filibuster,” there should be a price and actual effort required for doing it.

  11. Would mandating a filibuster remain on the issue in question be like mandating politicians tell the truth considered a denial of 1st Amendment right of freedom of speech?

    “one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.”

    Has filibustering, like the Electoral College, outlived its usefulness…if either ever had a rational usefulness?

    Could Trump’s impeachment team member’s responses be considered filibustering when none of the three provided a defense against the impeachment charge?

  12. The filibuster in it’s current form needs to go. It has become a cancer in the legislative process and a weapon to wielded by the minority to kill effective government.

    In the pre-1970’s form, it was rarely used because it was hard work. Somebody actually had the hold the floor speaking continually, and Senator had to be in the chamber just in case somebody called a vote to stop it. In today’s form, all somebody has to say is we are going to filibuster, and until you can muster 60 votes, go home and sleep on it.

    When it was used successfully, it was was almost always to block civil rights reform so it does have a dark history.

    Kudos to Theresa. In addition, Republican politicians like Lindsey Graham, seem to be doubling down on the QOP craziness with threats of impeachments over trivial matters as soon the Republicans have a majority. They have given up on any pretense to govern rationally. Unfortunately they have very effective propaganda machines, and it is going to take a lot of work to make many people believe that Republicans are off into the deep end. I have even seen bad right-wing spin on the proposed child tax credit.

  13. Strong central government was understandably not popular with former American colonists who had just undergone super strong central government from King George, hence the Articles which, however, showed that weak central government didn’t work either. Much of the debate leading to our ridding ourselves of the Articles was about the repayment of war debt and the lack of a mechanism to collect the money for such repayment. I think Madison threw a Tenth Amendment bone to the Articles’ aficionados two years after the Constitution was ratified to soften their anti-strong central government instincts, and it worked, even though we still see remnants of “home rule”debates ranging from the UN-sovereignty through state-municipality through township trustees debates by down home politicians in search of votes.

    I have read the pros and cons and historical backgrounds for keeping or discarding the filibuster and have come down on the side of discarding it. Majority rule (aka following the will of the people) was good enough for the ancient Athenians and Jefferson and it’s good enough for me. The filibuster can be used to thwart such a bedrock expression of the democratic process, so vote me nay.

    As for the filibuster, I have read the arguments pro and con and come down on the side of majority rule as envisioned by

  14. Ralph Ogden:

    Undeniably, abolishing the filibuster is a double-edged sword. It would inevitably come back to bite the Democrats in the ass someday should whatever party that emerges from the current QOP debacles take control of the Senate.

    But as I stated above, it wasn’t the Framers’ original intent for there to be a 2/3rds Super majority to pass any legislation, whatsoever, in the Senate, as is now the case. As you note, when they saw a need for a super majority vote, they explicitly provided for it in the Constitution. If that had been their intent, they would have explicitly included it in the Constitution.

    The filibuster was a mistake by Vice-President Burr and the Senate in 1805-06 done as an exercise in cleaning up was thought to be doing away with an unneeded and duplicitous rule. Exacerbated by the adoption in 1917 of the Cloture Rule requiring 2/3rds of the Senators present to vote to stop a filibuster, and made totally intractable for conducting virtually any business by the adoption of the Two-Track system in 1970.

    Biden promised to try for unity. In fact, a majority of U.S. Citizens approve of most of his proposed Legislation. That is unity, even if the majority of Republicans (who are an overall minority in this Country) will oppose each and every proposed law. Not even considering the fact that those Repub Senators represent a much smaller portion of the U.S. population.

    If the Dems don’t either abolish the filibuster now or at least return it to it’s original much more difficult task to-pull-off-for-a-protracted-length-of- time iteration, what we will see all over again is 2009. McConnell and his gang will negotiate, allegedly in good faith, but never agree to anything no matter what concessions the Dems make, and, as was the case during the 1st two years of Obama’s 1st term, not a single Repub will vote in favor regardless. We already know how that turned out; badly for the Dems.

    McConnell desperately wants to regain control of the Senate as he did during Obama’s Presidency. As he’s repeatedly demonstrated, he couldn’t care a wit about actually governing unless it involves tax cuts for the already wealthy and putting conservative ideologs on the Federal bench. McConnell believes the way to do it, is to obstruct every Dem legislative initiative no matter how needed or popular it might be. It worked once, and he thinks it will work again. He’s probably right.

    The only way to stop it is to do something to either end or limit the effectiveness of the filibuster. Let’s at least try to conduct actual governance and pass legislation that the vast majority of the public not only wants, but in many cases desperately needs. The future of the Country more than likely depends on it.

  15. I would agree with David F @ 12:55 pm statements. Do any states have provisions for a filibuster??? Just curious.

    The filibuster is just one more way in it’s present form to obstruct and McConnell has proven to be the Master of Obstruction. The filibuster like the Electoral College is like pouring sand into an engine.

  16. Theresa Bowers…well said!
    “Mischief” is what a five year old does when he pulls the dog’s tail. No, it is not “mischief”. It is…legalized insurrection against one’s own country.

    McConnel is a traitor who thinks he’s president. He thinks he has (an unchallenged) power of veto. It seems he’s right.

  17. Hmmmmm. I started to make a (hopefully intelligent) contribution to this commentary thread by observing that the real culprit making the Senate filibuster/supermajority possible was Article I Section 5’s provision allowing each chamber the right to “…determine the Rules of its Proceedings”. And then I was going to say that such “rules” were merely boring fine points that keep parliamentarians in business, and that therefore a supermajority provision not in the Constitution’s text would violate the Constitutional requirement that (outside of veto override) a bill must have at least a simple majority to pass. But, I would have gone on, there is case law (Common Cause v. Biden, D.C. Cir 2014) upholding a 60 vote rule for allowing debate to proceed, citing the above Section 5 provision.

    Then I paused to find the Article 5 “simple majority” provision……….and it nowhere to be found. Try again, Donald J. (my parents in 1938 didn’t foresee their son’s 1/20/2017-1/20/2021 embarrassment in choosing my middle name). Still nothing. Third time is charm, right?

    So help me, fine followers of Professor Kennedy…….tell me I need glasses over my implants or that its there in one of those liberal penumbras. I don’t think it’s there.

    Any thoughts?

    (Sheila…..if you spot it first please delete to save me a second lifetime embarrassment)

  18. Bob G – it was after Reagan was elected that they started to talk about the “permanent Republican majority” and compromise started to lose its appeal – Reagan combined Nixon’s Southern strategy with the early form of dismantling the government (and the unions) – under the Articles of Confederation, the rich and powerful do what they want with no one to stop them – even the “conservative” Nixon started the EPA which finally prevented Reserve Mining from destroying Lake Superior. The Reaganites, Libertarians, and QOTP (QAnon Old Trump Party) favor a new version of The Articles.

    I often wonder if the real source of hatred for Clinton was his ability to ruin this “permanent” majority.

    David F – thank you for the background on the filibuster

    I remember it mostly from Dixicrats filibustering civil rights legislation. For most of my life, it was used a bit by both sides – of course, those were the old days that Bob remembers when compromise wasn’t a dirty word. Sorry for the “both sides” folks, but the Republicans took the filibuster to new heights, and McConnell would abolish it in a second if he thought he needed it to go away. Remember the QOTP/McConnell rules – there is one Constitution for Democrats (they can’t do a thing) and another for Republicans (they can do anything)

    Biden is a pragmatist who would like those old cooperative days, but knows that results are what people really care about.

    Manchin and Sinema live in the world where fear of the “permanent Republican majority”, or their own belief in those values, makes them think that if they only stay “conservative”, and don’t hurt Mitch, they may get re-elected and get a bone or two to take to their states.

    If Sinema was smart, she would realize that Arizona could support a Democrat, if she could list her accomplishments that people see and feel; Manchin would understand that “bringing home the bacon” will ensure his re-election. Both would benefit by being in the majority, meaning DC and PR as states.

    I have to agree with Todd that Republicans have been trying to repeal the New Deal — since FDR. It became worse since Reagan.

  19. Don S, I’m not an expert in any way, but I have noticed that the article explicitly ascribes the two-thirds majority requirement for particular voting cases , so it seems likely that all other cases be considered to default to simple majority votes, especially considering some of the writing of the Framers around that time. Basically, it may have been so obvious to them that they never even thought to explicitly mention it, only pointing out the exceptional cases.

  20. John H: Thanks for confirming that I’m not missing something. Yes, I guess there is something so inherent in the idea of simple majority being the default position that the founders just didn’t bother to state it.

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