Opposing Opinions: Should the Senate Abolish the Filibuster?

The United States Senate.

By Beck Reiferson ‘23 and TJ Rickey ‘24

Now that Democrats control the House of Representatives, Senate, and White House, the filibuster — the Senate procedural rule that allows policymakers to block legislation until sixty senators vote to end debate and bring the bill to a vote (a process called cloture) — finds itself on an increasingly hot seat. The filibuster, which dates back to the early nineteenth century, has come under fire from many liberals because Republican senators, despite comprising a minority of the Senate, can use it to block legislation that Democrats want to pass. President Joe Biden, who historically has defended the filibuster, has now expressed his belief that the filibuster needs to be reformed. Below, T.J. Rickey and Beck Reiferson argue for and against, respectively, the abolition of the filibuster.

Rickey: A democracy, at its best, is composed of elected representatives who act on behalf of their constituents in good faith. In order to prevent one person or body from getting corrupted with power, the United States constitution established an executive branch, a judicial branch, and a bicameral legislative branch. If the American people vote to hand control of both chambers of Congress to one political party, then I argue it is undemocratic for those chambers to be limited in their ability to legislate as the majority sees fit. The executive branch and the Supreme Court are already a check on the legislatures, in addition to both chambers being a check on each other. Recently, the American people handed the House, Senate, and Presidency to the Democratic party. The overwhelming will of the American people will not be carried out properly unless they are able to legislate without hindrance from the minority opposition.

Reiferson: Whether or not the filibuster is undemocratic depends on what type of democracy you think America is or should be. The filibuster would certainly violate the principles of a pure democracy, in which whatever the majority wants goes; but, since the United States is a constitutional federal republic, the filibuster is perfectly in line with the nation’s foundational principles. The idea that a majority should be given free rein is something the Founding Fathers repeatedly and explicitly rejected. In Federalist 51, James Madison writes, “If a majority be united by a common interest, the rights of the minority will be insecure.” Because they were wary of the potential for a majority to dominate a minority, the Founders established a number of measures, such as the Electoral College, to ensure that the minority would retain some power. The filibuster accomplishes this same goal, allowing senators from the minority party to still have a powerful voice in the passage of legislation. Take away the filibuster and the senators from the majority party would have no incentive to compromise with their colleagues on the other side of the aisle, since just having fifty senators and the vice president — as is the case now — would be enough to ram through any piece of legislation they pleased. The majority would dominate the minority. 

Rickey: I agree that the Founding Fathers put in place provisions to protect the minority from the majority, but as you said those provisions are already in the constitution. The Electoral College inflates the value of small states, and the Senate itself already gives significantly more power to the small states. In fact, Democrats represent over 41 million more people in the Senate than Republicans, and have consistently represented more people for years. The filibuster is not one of the provisions that the founding fathers put in the constitution to protect the minority, nor is it encouraged in any of their subsequent writings. The Democrats have overcome a significant structural disadvantage to achieve a majority, and the founding fathers understood the necessity of passing legislation. That’s why they put in a 51% threshold to pass laws, revised from the higher threshold of the inefficient Articles of Confederation. The problem with the high threshold in the Articles was that it stifled necessary laws. The filibuster, which the Senate artificially imposed upon itself, is doing the same now.

Reiferson: You are correct that the Founding Fathers did not create the filibuster, but that does not change the fact that the minority-party-protecting effects of the filibuster are in line with the Founders’ preferences. The concordance between the effects of the filibuster and the wishes of the Founders extends beyond the issue of the tyranny of the majority. The Founders were also concerned with ensuring that laws remained consistent over time: in Federalist 78, for example, Alexander Hamilton argues that one of the chief benefits of having federal judges serve life appointments is that such a term helps “to secure a steady… administration of the laws.” The filibuster also helps keep laws consistent even as the makeup of the Senate changes. If a simple majority can pass whatever legislation it so desires—as would be the case in the absence of the filibuster—it is reasonable to expect that the party in power will pass almost everything it wants to pass, only for the opposing party to repeal these laws and pass their own laws when it is the majority. The laws themselves would be profoundly unsteady. 

Rickey: It may be true that the founding fathers wanted consistency of laws, but they certainly did not want no laws at all. In a time of serious polarization, the filibuster is used more than ever. In fact, it is often used to block the passage of laws broadly supported by the American people and the constituents of the people using it. Because politics have become a cable-televised, ideological game with two distinct and competing sides, legislation is often blocked not on principle, but to prevent the other side from getting a win. Although the recent American Rescue Plan was passed through reconciliation, which is a procedure allowing certain types of spending to pass by a simple majority, certain changes had to be made to the initial bill, which was supported by 61% of Americans, to fit within reconciliation. This would not have been a problem if the filibuster were not in place, and Republicans’ refusal to vote for the bill caused it to be watered down. This is just one of many examples of one side acting against the overwhelming interest of the American people because increased polarization has made bipartisanship impossible.

Reiferson: You raise an interesting point about the connection between increasing partisan polarization and increasing use of the filibuster. Given that hyper-partisanship is so rampant, why should the solution be to abolish the Senate procedure that actively encourages bipartisanship? Without the filibuster, wouldn’t the parties become even more entrenched on their side of the aisle? Additionally, in an era of hyper-partisanship, the problem of potentially having inconsistent laws is more severe: the two parties being so far apart means the swings in the law that occur when the majority party changes will be even more extreme. Your concerns about the filibuster preventing many laws from being passed are legitimate; it is certainly the case that, because of the filibuster, some good and popular laws have not been passed. But wouldn’t it be more likely for bad laws to be passed if the filibuster is abolished? Politicians you think support bad laws will eventually comprise a majority of the Senate, and wouldn’t it be nice to have a measure in place to prevent them from passing whatever laws they want then?

Rickey: The filibuster is currently in place, and it does not encourage bipartisanship. That is the problem. Instead, it just ensures that nothing gets done. We are in a moment where action needs to be taken by the government. America is in the midst of an economic crisis as well as a climate crisis. In addition, in reaction to misinformation about the last election, state legislatures across the country are passing legislation that limits voting access. Congress needs to take action to address these problems, and rather than encouraging compromises, the filibuster has just caused Congress to get nothing done at all.

Reiferson: You are right that the filibuster has some flaws. It is not my contention that the filibuster is perfect; I just think that ultimately the good outweighs the bad, and that abolishing the filibuster would produce significant long-term consequences that are not offset by the short-term gains currently proposed Democratic legislation may or may not effect. Given the imperfect nature of the filibuster, perhaps we can agree to reforms that are less dramatic than total abolition: lowering the cloture threshold from sixty to fifty-seven or fifty-five Senators, placing an annual limit on the number of times senators can vote against cloture, and/or permitting only a “talking filibuster” (the type of filibuster in which senators have to keep speaking on the Senate floor if they wish to prolong debate) are all less radical than abolishing the filibuster altogether, and would accomplish many of the same goals.