Last week, the federal government “shut down” because the Senate could not get the required 60 votes to invoke cloture and pass a continuing resolution to keep the government funded. The CR had passed the House, was supported by a majority of the Senate, and would have been signed into law by President Trump. It was defeated, however, by a minority of senators (mostly Democrats) who refused to fund the government unless the Republicans would make concessions on some other matters.

This raises an oft-debated question: Should the Senate further limit the use of the filibuster, which per Senate rules requires a supermajority of 60 votes to proceed to a vote on most legislative items? The Senate has already disallowed filibusters in the case of presidential nominations to executive or judicial office. However, some have suggested going even further and eliminating the filibuster altogether.

These calls to remove the filibuster have typically come from Democrats. They have made this argument when they’ve controlled the Senate and have been frustrated by Republicans using the filibuster to impede their agenda. They’ve noted how some Southern senators sought to thwart the enactment of federal civil rights legislation through the use of the filibuster. More generally, they have emphasized the non-democratic character of the filibuster, which empowers a minority in the Senate to defeat legislation supported by the chamber’s majority.

So far, Republicans have generally supported preserving the legislative filibuster in the face of these criticisms. They have defended it not only when they were in the minority, but also when they have had the majority, even when the sitting president of their own party called loudly for them to get rid of it.

Republicans have defended the filibuster for both tactical and principled reasons. Tactically, they may have feared that they would be in the minority most of the time and thus favored the filibuster as a way of fending off the worst excesses of an increasingly liberal and persistently powerful Democratic majority. On the level of principle, Republicans tend to be conservative and hence are interested in preserving longstanding, traditional institutions such as the filibuster—simply because they are traditional and longstanding.

Moreover, Republicans have responded to the Left’s complaints that the filibuster is anti-democratic by pointing out that America was never supposed to be a pure democracy. The Founders, they have argued, did not intend to establish a democracy but a constitutional republic, which includes checks and balances to prevent the excesses of majoritarianism. And the filibuster, this argument goes, while not one of the checks written into the Constitution, nevertheless conforms to its spirit by requiring a broad consensus to legislate that generally stops a majority from running roughshod over a minority.

All of these arguments have a certain merit. Nevertheless, they could all use a critical re-examination.

Tactically, it is not so clear that Republicans need to be afraid of being in the Senate minority most of the time. The anxieties that led to this way of thinking seem to belong to the age of Obama, when Democrats earnestly expected, and Republicans sincerely feared, a permanent national Democratic majority. That majority has not emerged. Accordingly, if Republicans can expect to have a Senate majority much of the time, the filibuster may be more of an impediment to using the power the American people have given them than a safeguard against Democratic excesses.

Moreover, while Republican support for institutional tradition is generally an admirable trait, it is worth recalling that the contemporary filibuster is not as traditional as many seem to assume. The traditional filibuster was a “talking” filibuster. Such a maneuver took place when a determined senator or group of senators took advantage of the Senate’s general rule of unlimited debate, which could only be cut off by a supermajority vote. Here, some senators would hold the floor, continuing to speak indefinitely, holding up all other Senate business in order to delay and ultimately defeat a measure.

Today’s filibuster, which only goes back to the 1970s, does not require senators to go through all of this effort. All they have to do is give notice of their intention to block a vote, which then triggers the 60-vote cloture motion in order to proceed. Whatever one may think about the merits of this procedure, it does not exactly belong to the age-old customs of the Senate.

Finally, and coming to the merits, a strong case can be made that the filibuster is contrary to the principles of government embodied in the Constitution. Those principles admittedly include checks and balances that are designed to foster careful deliberation, thus preventing the abuses of a tyrannical majority. They also include, however, a republican system of self-government in which the majority is empowered to govern. Indeed, in Federalist 22 Alexander Hamilton praised the Constitution precisely for not including the supermajority requirements that characterized the Articles of Confederation—requirements that he condemned as inconsistent with majority rule and energetic government.  

Of course, the Constitution itself includes supermajority requirements in some cases. But the occasions on which the Constitution calls for it are grave and extraordinary, such as amending the Constitution or removing people from office. In such cases, it is reasonable to require a broad consensus, and thus to give a minority power to prevent action.

It is not clear, however, why a minority in one legislative chamber should be able to stop the routine operations of the government by refusing to fund programs and agencies that have already been enacted by the will of the majority. Such a power does not seem essential to preventing a majority from running roughshod over a minority. It seems rather to empower a minority to run roughshod over a majority. Or, in Hamilton’s words, such a power allows “a pertinacious minority” to “control the opinion of a majority respecting the best mode of conducting” the “public business,” with the result that “the sense of the smaller number will overrule that of the greater.” This result seems contrary to the promise of self-government that the Constitution is supposed to deliver.

This argument need not be pressed so far as to claim that the legislative filibuster ought to be abolished entirely. If it’s objectionable to allow a “pertinacious minority” to bring the government to a halt on one hand, there is something reasonable about requiring a broad consensus for important new policies on the other.

These observations suggest a compromise. Perhaps the Senate could disallow the use of the filibuster in relation to legislation that does no more than fund the existing operations of the government, but preserve it for use on legislation that creates new programs or new legal obligations.

Decent self-government requires respecting the minority—not submitting to their dictates.