Filibuster reform can save the Senate from perpetual inaction 

Vice President Kamala Harris made a splash last week when she announced her support for bypassing the Senate’s filibuster rule to pass legislation restoring Americans’ right to access abortion.

Immediately afterward, the Capitol Hill press corps flocked to hear from Democratic senators, many of whom threw their weight behind the effort. But others offered leery or noncommittal comments expressing hesitation to change the age-old Senate tradition, which raises the question: What are these institutionalists trying to preserve?

Today’s no-effort filibuster, used constantly to enable the Senate minority to veto any bill they don’t like, is a gross corruption of the institution. Although the Founders explicitly rejected the idea of requiring supermajorities to pass legislation, the filibuster has been around for over 180 years. Still, for nearly all of that history, it was rarely used for simple obstruction.  

President Obama called the filibuster a “Jim Crow relic” because, for much of the 20th century, civil rights laws were the only thing it was used to obstruct. In fact, during the height of the Civil Rights Movement, from 1955 to 1964, there were just nine instances in which senators used the filibuster to block legislation, virtually all affecting civil rights. Yet during the first six years of Obama’s presidency alone, there were hundreds of such instances.

Since then, virtually any bill that can be filibustered is, resulting in perennial gridlock. The Senate is virtually incapable of legislating on issues of real national consequence, absent statutory exceptions to the filibuster and emergencies (often of Congress’s own making, such as impending government shutdowns).  

Preserving today’s status quo of gridlock and inaction is unacceptable and has real consequences for our rights and freedoms. The question is what to do about it. Senators who worry that exempting certain favored bills from the filibuster will ultimately lead to wholesale elimination of the filibuster are probably right. But the alternative isn’t to preserve current traditions and practices that bear little resemblance to the Senate that existed for its first 200 years. Instead, institutionalists should seize the opportunity to restore some balance to the Senate so it can recapture its ability to deliberate and vote on the big issues of the day. 

For most of its history, on most issues, senators in the minority — unlike their counterparts in the House — were active participants in the legislative process. Because of the rules that allowed for filibustering, senators had the ability to gum up the works. However, different rules and social norms of the era meant that filibustering was hard and rare, so senators generally used their leverage to extract compromises rather than to try to kill bills outright.  

Today, discussions center around whether there should be “carve-outs,” allowing certain bills on abortion rights or voting rights to bypass the filibuster. However, this would virtually guarantee endless, politically damaging debates about which constituencies are important enough to override a veto from the minority party. Instead, senators should reform the filibuster rules to ensure senators can once again meet the expectations of the voters who elect them and deliver results while preserving some minority party input. 

There are various ideas for how to change the rules, with strong opinions on every side. If institutionalist senators want to be champions of the institution’s history and traditions, they should make filibustering hard and rare, while also ensuring that the minority has sufficient leverage over the legislative process that the majority has reason to explore compromise. And if no compromise can be found, eventually a determined majority must have a path to finish a bill and get a simple majority, up-or-down vote. That’s not only what the Founders intended, it’s how to ensure the minority also has an incentive to seek compromise. 

Harris is right that a Senate majority should be able to vote on national abortion rights — just as it should be able to vote on voting rights bills, or gun safety legislation, or the Equality Act, or immigration reform — even if 41 percent of the senators representing perhaps a quarter of the population don’t like it.

But it doesn’t need to be easy to get to a vote. It doesn’t need to be a binary choice between today’s abused no-effort filibuster or no minority participation at all. Senators should seize the opportunity not only to pass crucial legislation, but to restore the Senate to a place that can help craft lasting solutions to the nation’s big challenges. 

Mike Zamore is the national director of policy and government affairs at the American Civil Liberties Union and the co-author of “Filibustered! How to Fix the Broken Senate and Save America.”