Skip to content
Search

Latest Stories

Follow Us:
Top Stories

Presidential outcome may portend the Senate filibuster’s finish

Opinion

Presidential outcome may portend the Senate filibuster’s finish

"The delay tactic of filibustering was actually an accident of history that came about in 1807," write Michael Golden and Emmet Bondurant.

Zach Gibson/Getty Images

Golden is the author of "Unlock Congress" and a senior fellow at the Adlai Stevenson Center on Democracy. He is also a member of The Fulcrum's editorial advisory board. Bondurant has argued several cases before the Supreme Court and represented Common Cause in an unsuccessful 2010 lawsuit challenging the constitutionality of the filibuster.

Buried in the vortex of voices shouting at each other during this week's South Carolina debate were two consecutive answers in which Elizabeth Warren and Pete Buttigieg both announced support for a simple rule change that would be a game-changer for the American people: Finally putting an end to the filibuster.

For several years we've been making the legal argument that the cloture rules of the Senate, who now require 60 votes instead of a simple majority to advance legislation, are unconstitutional. Neither lawmaking nor executive branch appointments were included by the Framers in the five scenarios they laid out requiring supermajorities.


The delay tactic of filibustering was actually an accident of history that came about in 1807. Later on, the Senate simply invented the 60-vote rule so that windy grandstanders couldn't just prattle on forever.

But the legality of the rules wasn't the basis for the debate-stage pronouncements by the Massachusetts senator and the former mayor of South Bend, Ind. The passion the two Democratic presidential candidates have for ending filibusters rests on the fact that they have been used in recent decades to block all kinds of things that overwhelming majorities of Americans support — and often majorities in both chambers of Congress.

We fervently agree, and to a significant extent, so have the Senate leaders in both parties over the last decade when it comes to cabinet and judicial appointments.

In 2013, Democratic Majority Leader Harry Reid exercised what's become known as the "nuclear option" — eliminating the 60-vote hurdle for confirming executive branch nominees and all federal judges except the most powerful nine.

At the time, Republican Minority Leader Mitch McConnell seethed about the rule change. But after the GOP gained the majority in 2017, he went nuclear himself to get the filibuster ended for Supreme Court nominees as well. Justices Neil Gorsuch and Brett Kavanaugh are the result.

Passing legislation, the most important task assigned to Congress, is all that remains captive to the filibuster. After his changing of the rules, and in a staggering display of hypocrisy, McConnell stated, "The legislative filibuster is central to the nature of the Senate. It always has been and must always be the distinctive quality of this institution."

The centuries-old label for the Senate of "world's greatest deliberative body" has literally become a punchline. This cruel joke played out most recently when senators refused to allow witness testimony in President Trump's impeachment trial.

And you want to see legislation pass with the potential to improve your life — or even if you only want to see an idea put to an up-or-down vote — that cruel joke has more serious consequences.

The Senate's pompous sense of self-importance and reverence for the filibuster's history only serve as impediments to progress. Buttigieg got specific about this in the most local fashion during the debate, reminding South Carolinians that their legendary segregationist senator, the late Strom Thurmond, "used the filibuster to block civil rights legislation repeatedly. ... It has got to go, otherwise Washington will not deliver."

Those who disagree often reference the apocryphal story of George Washington describing the Senate as a "cooling saucer" for the heated pace of bills passing through the majority-rule House. They warn about the danger of sudden moves in Congress. Conservative author David French made the case that, "at the very least, it's a recipe for increasing bitterness, division, and instability in public policy."

But we already have a record level of bitterness and division. Meanwhile, big bills with broad support are never put to a final vote. It's been a decade, for example, since an expansive immigration reform called the Dream Act reached its high water mark, dying even though 59 senators voted to break the filibuster, and an expansive campaign finance crackdown suffered the same fate even with 57 senators on board.

What the filibuster effectively does is allow a minority of senators, from states with as little as 11 percent of the national population, to effectively veto bills supported by the senators representing 89 percent of Americans.

The irony is that Republicans who gasp at the thought of killing the filibuster, for fear of its long-term effects, have already made possible majority votes on the judges who may wield power for life. Legislation can be corrected by amendment or repealed through the ordinary course of Congress. The same process does not apply to judges.

Interestingly, not only does Reid not regret his decision to make the first weakening of the filibuster, in retirement he supports its outright extinction. Reid has said it is going to happen, it is only a question of when.

A former GOP Senate leader, too, has seemed to see the light in retirement. In 1993 and 1994, Bob Dole set a record for using the filibuster and cloture — more times than it had been used in all the years between 1917 and 1970. But on his 90th birthday, Dole announced, "There are things that should be stopped, but at least there ought to be a vote. It can't continue, this constant holding up of bills." Ah, the wisdom of experience.

In the debate, Buttigieg and Warren stated their unequivocal support for getting rid of the filibuster. But other senators have also stated openness to making the only nuclear move left — including the other two in the presidential race, Bernie Sanders and Amy Klobuchar.

When you stop and think about our country's birth, and the rules the Founders outlined for our representatives to operate under, this question becomes far less confounding. What great harm would befall the Republic, what great democratic values would be lost if the Senate were to become, for the first time in over 200 years, a majoritarian body governed by the democratic principle of majority rule as the Framers of the Constitution intended?

If the Democrats win this November, they might answer that question once and for all.


Read More

Pacific heights , San Francisco, CA

High view over Pacific heights and San Francisco Bay at sunset

Getty Images

Class A for Residents, Class B for Investors

Neighborhood residents should be able to build ownership without surrendering control to whoever brings the largest check. I propose a neighborhood corporation with Class A shares for residents and Class B shares for outside investors. Pacific Heights and Cow Hollow could examine the first model, then make its documents and lessons available to other neighborhoods.

The distinction must mean something. Class A would protect resident governance. Class B would let outside capital participate on disclosed economic terms. The corporation would own assets it voluntarily acquires and operate agreed services. It would govern those assets and contracts; government authority over zoning, taxes and public streets would remain subject to public law.

Keep ReadingShow less
​A demonstrator holds a sign

A demonstrator holds a sign in front of the Federal Courthouse in Detroit, Michigan.

(Photo by Bill Pugliano/Getty Images)

Beyond Airstrikes: Why America Must Rethink Its Counterterrorism Strategy in Nigeria

When American forces carried out airstrikes against suspected Islamic State militants in northwest Nigeria on Christmas Day 2025, the operation offered a glimpse of renewed security cooperation between Washington and Abuja. But for Nigerians living in communities threatened by terrorism, kidnapping and armed attacks, a more pressing question remained: Would the strikes make their lives any safer?

That question deserves attention in Washington. The United States has spent decades helping Nigeria combat terrorism through military equipment, intelligence sharing and training. Yet armed violence continues to disrupt everyday life across northern Nigeria, raising doubts about how the success of American counterterrorism assistance should be measured.

Keep ReadingShow less
Victorian style houses at Alamo Square in San Francisco, CA

Colourful vibrant Victorian style houses at Alamo Square in San Francisco, California, USA

Getty Images

Fund the Community DataBank

San Francisco residents need an organization that can follow public money and decisions before the damage is done. I propose a Community DataBank, beginning with Pacific Heights and Cow Hollow, supported by a modest, publicly approved allocation of our taxes. Residents should be able to find out what government is doing without requiring everyone to research City Hall.

My earlier proposal placed two desks outside the Mayor’s Office, staffed by neighborhood association members who would watch who goes in and out and follow the public business behind those visits. The DataBank would give those desks useful work and reliable records. A visitor’s presence would prompt a question; official documents would establish what actually happened.

Keep ReadingShow less
US America and China flags on chess king on a chessboard.

USA and China trade relations, cooperation strategy. US America and China flags on chess king on a chessboard.

Getty Images

America’s Gridlock Is Beijing’s Best Argument

Americans tend to treat democracy’s superiority as settled, and the long-run evidence backs them up. A major study by MIT economist Daron Acemoglu and colleagues found that countries that democratize end up about 20 percent richer per person within a generation. But most of the world does not grade governments on long-run studies. For billions of people outside the wealthy West, the test is simpler: does the power stay on, are food prices steady, is there work, and do the roads get built? When the stomach is empty, a ballot can feel like a luxury.

China understands this and sells its model on exactly those terms. Its GDP per capita has climbed from about $300 in 1980 to nearly $15,000 today, by IMF figures, and the World Bank credits it with lifting some 800 million people out of extreme poverty. India, the world’s largest democracy, started from a similar place and sits near $2,800. Beijing’s centralized system, paired with Deng Xiaoping’s market reforms, built power plants, factories and rail lines at a pace India’s more deliberative politics has not matched. Anyone who values liberty will find little to admire in that model. It does explain why the model sells.

Keep ReadingShow less