Of filibusters and festive bachelors: The dark purpose of the Senate’s minority rule

The U.S. Senate's filibuster rule looms large, threatening to stymie both the John Lewis Voting Rights Act and President Joe Biden's $2 trillion Build Back Better Act, despite the Democratic Senate majority and strong popular support among Democratic voters for both measures. Popular mythology aside, the filibuster's crucial and insidious function is that it enables senators to feign serving their constituent voters while in fact serving their special interest donors. As will be seen, it operates like the orchestration of a particularly debauched bachelor party.

The filibuster is not founded in the U.S. Constitution; to the contrary, the Framers gave both the Senate and House the power to pass legislation by simple majority vote. Beginning in 1806, the Senate concocted the first iteration of the filibuster rule, at the suggestion of Vice President Aaron Burr (who had just been indicted for the murder of Alexander Hamilton). Today, the filibuster allows a single senator to oppose a bill and requires a supermajority of 60 votes to pass. Every newly constituted Senate majority, whether Democratic or Republican, perpetuates this practice by renewing the filibuster rule. The filibuster applies to all legislation except budgetary bills and judicial and other executive appointments. Paradoxically, while the filibuster rule\ requires a supermajority to pass legislation, the rule itself may be suspended or repealed entirely at any time by a simple majority vote. United States v. Ballin, 144 U.S. 1, 5 (1892) (The Constitution grants the houses of Congress the "continuous power" to enact or modify their internal rules.)

So why would a Senate majority give away a massive chunk of that power to the Senate minority via the filibuster rule? How can we square this self-inflicted hobbling with the normally reliable principle that politicians act rationally to gain and assert political power?

Defenders are fond of reciting that the filibuster protects the rights of the minority. But this is like saying the presidency must be awarded to the candidate who garners the fewest votes. Calling the filibuster a minority rights provision is simply a euphemism for minority rule.

Alexander Hamilton wrote in Federalist No. 22, "If a pertinacious minority can control the opinion of a majority ... [the government's] situation must always savor of weakness, sometimes border upon anarchy." He made clear this majoritarian principle applied to the houses of Congress. In Federalist No. 58, Hamilton noted the absurdity that would flow from a supermajority requirement: "[T]he fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority." Given Hamilton's central role on the Constitution's grant of majority rule to the Senate, it is particularly ironic that Aaron Burr can take credit for both killing Hamilton and a year later killing majority rule in the Senate by proposing the filibuster.

Another fiction spun by defenders of the filibuster is that the work of the Senate is momentous, and that to avoid momentous mistakes it is crucial to maintain a mechanism allowing a minority of members to hit the brakes or even kill a popular bill. This is loosely connected to the Madisonian notion expressed in Federalist No. 63 that the Senate is designed for lengthy and cool deliberation, resistant to the "violent passions" of the electorate. The specific constitutional design feature implementing this Madisonian notion is senators' terms of six-year terms, much longer than the two-year terms served by members of the House. Madison's assumption was that voters have short memories and are unlikely to recall how their senators voted on bills by the time they must seek reelection. Thus, senators' six-year terms are meant to afford them some insulation from the transitory will of the electorate.

This concern reflected the Framers' fear of the "overbearing majority," who if permitted might simply decide to divest the land-owning class of their wealth. (Madison, Federalist No. 10.) Owing to this fear, the Constitution includes several anti-majoritarian circuit breakers to protect the wealthy from the electorate. As a result, ours is not pure, direct democracy; but without these compromises to entrenched wealth, the Framers might not have achieved an enduring constitutional document at all. Fair enough. But Madison would be shocked to see the extent to which the Senate has become untethered from the popular electoral will. Madison could not have foreseen vastly disproportionate state population growth, resulting in today's 50 Democratic senators representing 40 million more Americans than the 50 Republican senators. And Madison certainly could not have foreseen that the Senate would invent the filibuster and thus relinquish its constitutionally given power to act on a majority. With the filibuster, the Senate has taken the Madisonian notion of moderate insulation from popular will and turned it up to 11. The modern Senate is not the place for cool deliberation Madison intended, but rather the place where popular legislation goes to freeze and die.

Having disposed of the notion the filibuster can be traced to the Constitution or to the Madisonian concern for moderate autonomy from voters, let's return to the core premise of filibuster mythology -- that the Senate's work is momentous, and that a supermajority requirement serves to avoid making momentous legislative mistakes. It is certainly true that the federal legislative power is momentous. However, the notion that mistakes can be avoided through the filibuster's supermajority requirement is demonstrably specious and is accepted by the public only due to a prevalent logical fallacy known as "omission bias." Omission bias, or "status quo bias," is the common but incorrect belief that maintaining the status quo carries less inherent risk than taking action. But in the face of any problem, both the status quo and changing the status quo are courses of action; neither is "neutral," and neither carries an inherently greater risk. If a driver is traveling on a road and sees a car stalled in the lane directly ahead, it would be absurd to say the inherently safer course would be to maintain the status quo, hurtling toward a collision, rather than choose another course, say braking or changing lanes. Similarly, if there is scientific and public consensus the planet is hurtling toward environmental disaster caused by the burning of fossil fuels, it makes no sense for the Democratic Senate majority to say, "We agree, but inaction is inherently safer than legislating, and so we must maintain the filibuster and hope ten sympathetic Republican votes materialize."

When examined carefully, the fallacy of omission bias seems obvious. Yet in day-to-day life, it is a persistent cognitive trap. John F. Kennedy described the problem well: "There are risks and costs to a program of action. But they are far less than the long-range risks and costs of comfortable inaction." Kennedy was correct -- no voter should accept the contrary myth the filibuster reduces the risk of legislative miscalculation. Nor should anyone be persuaded by the frequent but meaningless bromide that the filibuster is Senate "tradition." And certainly, no one should be moved when senators apocalyptically refer to suspension of the filibuster -- restoring majority rule -- as the "nuclear option."

So if the filibuster cannot be traced to the Constitution, is blatantly anti-democratic, and actually increases the risk of legislative error, then why does each Senate majority routinely choose to cede power to the minority by reenacting the filibuster rule? The answer has less to do with the familiar power dynamic of Democrat versus Republican than with the more murky dynamic of voters versus special-interest campaign donors. Simply put, a senator needs votes to be elected, but also large donors to fund the expensive campaigns designed to generate those votes. When possible a senator will act to promote the joint interests of voters and large donors. Inevitably, however, divergence occurs between the interest of voters and large donors. Such divergence poses a dilemma requiring the senator to choose which interest to support. Or does it? Enter the filibuster.

When each new Senate majority votes to renew the filibuster, they are establishing a high procedural hurdle they know will doom many measures supported by their voters but opposed by their donor class. This fatal procedural hurdle gives a senator the ability to performatively support a popular measure while winking at donors. To the average voter, the filibuster is "inside baseball." Most voters are busy putting food on the table; few have the time or energy to critically assess the filibuster and recognize that their senator voted for the filibuster rule in order kill at birth the popular bill for which that senator now feigns support. But large donors spend less time putting food on the table than putting legislators in their pockets, and they grasp perfectly the difference between a senator's theatrics and genuine support of a bill.

That's the genius of the filibuster: A Senate majority can turn to constituents and say, "Gosh, we'd love to enact this important and popular legislation, but the filibuster is tying our hands!" Of course, this is false -- as noted, a simple majority of Senators can at any time suspend the filibuster, as they did notably in 2013 and 2017.

Even fellow Democrats in the House have lost patience with the Senate Democrats' pretense at being bound by the filibuster and have openly urged Senate Democrats to vote by majority to suspend the filibuster to pass voting rights legislation (the For the People Act, designated S.1). But Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) resist because they wish to maintain the illusion they cannot act on a simple majority, and likely because many of their large donors oppose the voter protection act. Consider that in polling conducted last August, large majorities of voters in both Arizona and West Virginia favored Democrats passing S.1 by majority vote. Both Sinema and Manchin have claimed to support the bill, but both have balked at passing it by majority, citing the sanctity of the filibuster. This is precisely the type of disingenuous performative support referred to previously.

This is not meant to single out Senate Democrats as uniquely duplicitous. Every new Senate majority routinely renews the filibuster as a convenient way to deceive their constituent voters when the need arises. Nor is this type of procedural sleight-of-hand unique to members of the U.S. Senate. Consider the recent admission of a senior Exxon Mobil lobbyist that Exxon's splashy public support for a carbon tax was a ploy. Exxon knew the carbon tax was non-starter lacking any legislative backing, and so its feigned support would not risk resulting in any actual legislation. Exxon's ploy was to garner positive Green PR, all while obscuring the company's real efforts to thwart more viable carbon reduction legislation.

Back to the analogy I alluded to at the start of this column: the bachelor party (my personal knowledge is limited to bachelor, not bachelorette, parties). If a group planning a bachelor party wishes to have a bawdy affair, the task of planning can be delegated, by design, to a member of the group who has no spouse or partner to which he is accountable. That way, a truly debauched event is guaranteed, but if any of the sordid details leak to significant others, the revelers can disclaim responsibility. This disclaimer is generally accompanied by a remorseful headshake and sounds something like, "Yeah, it was pretty bad -- Bob planned it, and you know how he is." Just as with the filibuster, a majority of participants has taken a preliminary procedural step insuring the result they desire, yet preserving their ability to plausibly disclaim responsibility.

Voters should demand their senators vote by simple majority to abolish the filibuster rule. The media should cease indulging filibuster mythology designed to portray the rule as noble or immutable. And the Senate majority should cease hiding behind the filibuster and reclaim their constitutionally bestowed power -- and duty -- to legislate by majority. 