I’ve been thinking more than usual about the filibuster lately, for a lot of obvious reasons. I think one of the things at the root of current political unrest is persistent government failure and obstructionism. The US Constitution already makes it pretty difficult to pass legislation, but the filibuster makes it that much more so. Does abolishing the filibuster makes sense from a constitutional perspective, given the fact that it has been part of normal legislative procedure for so long now? What implications would abolishing it have for bi-partisanship? And how much does the origin and history of the filibuster matter?
I found this conversation between Adam Jentleson and Ezra Klein valuable and engaging, especially when it comes to that last question. Jentleson has recently written a book called Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. In the podcast, he makes a powerful case for eliminating the filibuster. There are a number of strong arguments from the perspective of constitutional design (and the fact that the Founders knew about supermajorities and decided against them for normal legislation, partly because of their experiences with the Articles of Confederation), but in addition to that there are pragmatic arguments for getting rid of it (namely the need to pass some legislation, and to restore some competence to the government), and then there’s also a strong moral argument for getting rid of it. The moral argument concerns the origin of the filibuster – as Jentleson explains, it’s got a pretty sordid past. As they put it in the blurb: “For much of its history, the filibuster was used primarily to prevent civil rights legislation from becoming law. But more recently, Republicans have refined it into a tool for imposing their will on all issues, wielding it to thwart an increasingly progressive American majority represented by Barack Obama’s agenda and appointees.”
The discussion – which you can also find summarized here – acknowledges that both parties now use the filibuster all the time (and it’s worth noting that under Trump the filibuster was used to guard the will of the majority), but Klein and Jentleson make a compelling case that ending or reforming the filibuster could actually wind up promoting bi-partisanship.
Today, in response to a reporter’s question about how it would look for the GOP to use the filibuster to block HR1 – the House’s new voting rights bill, Mitch McConnell claimed that the filibuster “has no racial history at all. None. There’s no dispute among historians about that.” Maybe McConnell missed the Jentleson book and the podcast – or maybe he senses just how much this history actually matters.