I’m Not Actually Interested in Mitch McConnell’s Hypocrisy
To make his case for the filibuster, he has essentially rewritten the history of the Senate.
"On Tuesday, Mitch McConnell, now the Senate minority leader, spoke in defense of the legislative filibuster.
“When it comes to lawmaking, the framers’ vision and our history are clear. The Senate exists to require deliberation and cooperation,” McConnell declared. “James Madison said the Senate’s job was to provide a ‘complicated check’ against ‘improper acts of legislation.’ We ensure that laws earn enough buy-in to receive the lasting consent of the governed. We stop bad ideas, improve good ideas and keep laws from swinging wildly with every election.”
He went on: “More than any other feature, it is the Senate’s 60-vote threshold to end debate on legislation that achieves this.”
It’s hard to take any of this seriously. None of McConnell’s stated concern for the “lasting consent of the governed” was on display when Senate Republicans, under his leadership, tried to repeal the Affordable Care Act by majority vote. Nor was there any interest in “deliberation and cooperation” when Republicans wanted a new round of corporate and upper-income tax cuts.
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If anything, the filibuster stymies that deliberation and cooperation by destroying the will to legislate at all. It makes bipartisanship less likely by erasing any incentive to build novel coalitions for particular issues. If, under the filibuster, there’s no difference between 51 votes for immigration reform and 56 votes (or even 59), then what’s the point of even trying? Why reach out to the other side if there’s almost no way you’ll reach the threshold to take action? And on the other side, why tinker with legislation if you know it’s not going to pass? When there’s no reason to do otherwise, why not act as a rigid, unyielding partisan?
It’s obvious that McConnell’s commitment to the filibuster is instrumental. The filibuster on executive branch nominations of appointees and federal judges was sacred — he condemned the Democrats’ use of the “nuclear option” to get rid of it in 2013 — until President Trump needed Neil Gorsuch on the Supreme Court and then it was bye-bye to the filibuster for Supreme Court nominees that McConnell’s predecessor as Senate majority leader, Harry Reid, had left intact. If the reconciliation process didn’t exist, and Republicans needed 60 votes for upper-income tax cuts, there’s almost no doubt McConnell would have killed the legislative filibuster in 2017, for the sake of his party’s signature priority.
I’m not actually that interested in McConnell’s hypocrisy. I’m interested in his history. To make his case for the indispensable importance of the legislative filibuster, McConnell has essentially rewritten the history of the Senate. He has to create a new narrative to serve his current interests.
The truth is that the filibuster was an accident; an extra-constitutional innovation that lay dormant for a generation after its unintentional creation during the Jefferson administration. For most of the Senate’s history after the Civil War, filibusters were rare, deployed as the Southern weapon of choice against civil rights legislation, and an occasional tool of partisan obstruction.
Far from necessary, the filibuster is extraneous. Everything it is said to encourage — debate, deliberation, consensus building — is already accomplished by the structure of the chamber itself, insofar as it happens at all.
In the form it takes today, the filibuster doesn’t make the Senate work the way the framers intended. Instead, it makes the Senate a nearly insurmountable obstacle to most legislative business. And that, in turn, has made Congress inert and dysfunctional to the point of disrupting the constitutional balance of power. Legislation that deserves a debate never reaches the floor; coalitions that could form never get off the ground.
In quoting Madison, McConnell frames the filibuster as part of our constitutional inheritance. It is not. The filibuster isn’t in the Constitution. The Senate, like the House of Representatives, was meant to run on majority rule.
Remember, the framers had direct experience with supermajority government. Under the Articles of Confederation, each state had equal representation and it took a two-thirds vote of the states for Congress to exercise its enumerated powers. Without the consent of nine states (out of 13), Congress could not enter treaties, appropriate funds or borrow money. And the bar to amendment, unanimity, was even higher. The articles were such a disaster that, rather than try to amend them, a group of influential elites decided to scrap them altogether.
For a taste of this frustration, read Alexander Hamilton in Federalist no. 22, which contains a fierce condemnation of supermajority rule as it was under the articles:
The necessity of unanimity in public bodies, or of something approaching toward it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.
Hamilton is especially angry with the effect of the supermajority requirement on governance.
In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.
Delegates to the constitutional convention considered and rejected supermajority requirements for navigation acts (concerning ships and shipping), regulation of interstate commerce and the raising of armies. Majorities would have the final say everywhere except for treaties, amendments and conviction in an impeachment trial.
To make the Senate slow-moving and deliberative, the framers would not raise barriers to action so much as they would insulate the body from short-term democratic accountability. That meant indirect election by state legislatures, staggered terms of six years and a small membership of two senators per state. And at ratification, that is where the Senate stood: a self-consciously aristocratic body meant to check the House of Representatives and oversee the executive branch, confirming its appointments and ratifying its foreign agreements.
The filibuster doesn’t enter the picture until years later, as an accident of parliamentary bookkeeping. In 1806, on the advice of Vice President Aaron Burr (who thought it redundant), the Senate dropped the “previous question” — a motion to end debate and bring an item up for immediate vote — from its rules. Without a motion to call the previous question, however, an individual senator could, in theory, hold the floor indefinitely.
It took 31 years for someone to actually do it. The first known filibuster took place in 1837, when several Whig senators tried unsuccessfully to block a Democratic bill to reverse an 1834 censure of President Andrew Jackson and expunge it from the congressional record. Even then, the filibuster was not widely used until the second half of the 19th century, as the parties, and thus the Senate, grew more polarized along party lines.
The filibuster as we understand it developed in the 20th century. In 1917, President Woodrow Wilson called on Senate Democrats to reform the filibuster as a war measure after Republicans successfully filibustered a bill to arm merchant ships. Democrats obliged and created a “cloture” rule to end debate with a two-thirds vote of the chamber. In 1975, the Senate reduced that threshold from two-thirds to three-fifths, or 60 votes in a 100-member body.
Throughout this time, filibusters were uncommon. It was perfectly possible for the Senate to debate, deliberate and come to consensus without the supermajority requirement McConnell and the Republican caucus have imposed on virtually all legislation since 2009.
The point of comparison for the Senate as McConnell has shaped it is the middle of the 20th century, when a conservative coalition of Republicans and Dixiecrats made the chamber a graveyard of liberal legislation and social reform. Consensus didn’t matter. Power did. And it wasn’t until liberals wrested powerfrom this coalition — in the House as well as the Senate — that they could take the initiative and begin work on an otherwise popular agenda.
There is no question the Senate is supposed to be slow, even sluggish. But it’s not supposed to be an endless bottleneck. The framers wanted stability in government, not stagnation. What we have now, with the filibuster intact, is a Senate that can barely move.
This isn’t just a problem for President Biden and the Democratic Party; it’s a problem for the entire constitutional order. Our system is built around Congress; Congress makes laws, Congress holds the purse strings, Congress hands out mandates, Congress checks the president and makes sure the judiciary stays in its lane.
When Congress doesn’t act, other actors take up the slack. The story of our democracy these last 10 years is, in part, the story of how a listless, sclerotic Senate broke Congress and pushed the other branches to govern in its stead, with the president and the courts making as much policy as they can without congressional input, with all the capriciousness, whiplash and uncertainty that can come from that.
If you don’t like presidents governing through executive order, then you should want an active, energetic Congress that embraces its constitutional mandate to rule over the whole country and direct its government. If you want that, you should oppose the filibuster."