Last week, the U.S. Senate — in a rare show of bipartisanship — halted an effort to destroy the filibuster. Despite hyperbolic mischaracterizations of the filibuster as a “Jim Crow relic,” the filibuster preserves the voice of Americans represented by the minority party. Saving the filibuster was a win for minority rights.
Four times in this session of Congress alone, the filibuster was used to block legislation that would nationalize elections and prevent state efforts to improve integrity of elections. Despite pressure from President Biden and Senate Majority Leader Schumer to change the rules, the filibuster stands. Each of the four versions of the election bill was too extreme and failed to attract bipartisan support.
The filibuster allows a single U.S. senator to prevent passage of a bill by extending debate on the Senate floor. Only a supermajority of senators — 60 of the 100 total — can overcome a filibuster through a special vote called cloture. The filibuster thus makes it difficult to pass legislation on a straight party-line vote. In this way, it encourages compromise.
At this point in history, one political party controls the presidency and both houses of Congress, and with that consolidation of power comes the dangers of abuse. In 1787, James Madison — architect of the U.S. Constitution — explained the dangers of the tyranny of the majority in Federalist 10: “Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
To avoid the danger of an overbearing majority, our founders created a bicameral legislature. Unlike the House of Representatives where simple majority rules and the membership is based on population, in the Senate, each state in the nation is entitled to equal power — each with the voice of two senators.
We don’t need two Houses of Representatives. Otherwise, the smallest and least populated states would have no voice in Washington, D.C. Each senator’s ability to filibuster is an important check on abuse of power. The quest for Washington to obtain, increase, and hold onto power would have no limit.
The Senate is often analogized to a “saucer” while the House is hot tea:
George Washington is said to have told Jefferson that the framers had created the Senate to “cool” House legislation just as a saucer was used to cool hot tea.
While the House of Representatives engaged in heated rhetoric to ram through a massive takeover of federal elections, the procedures of the U.S. Senate stopped the excess.
The consolidation of power is something about which scholars from both the right and left are concerned. American Enterprise Institute’s Senior Fellow Emeritus Norman Ornstein along with Brookings Institution Tom Mann wrote about “the high level of dysfunction in Congress that had been building since the 1990s.” Ornstein explained:
[P]artisan division had been accompanied by a growing ideological gulf in Congress, and along with it had come a decline in institutional loyalty and other norms, the near disappearance of meaningful debate and deliberation, and a sharp decline in the “regular order,” the adherence to and respect for the rules and procedures that normally operated in the legislative body.
At risk was a rule and procedure — the filibuster — that guards against overreaching intrusions into liberty. The filibuster protects individual rights.
One of the most famous uses of the filibuster was when Wisconsin Senator Robert La Follette spoke for 3 hours on October 6, 1917, to defend the right of free speech during wartime. He recognized the power of the filibuster to protect liberty, saying:
[The orator] holds the balance of power. It is the orator, more than ever before, who influences the course of legislation and directs the destinies of states.
Thanks to the filibuster, the minority was able to halt a major federal takeover of state prerogatives. The voting rights of U.S. senators in the minority party were protected. But more importantly, We the People still have a voice at the federal level. A dramatic usurpation of power was halted to preserve minority rights. Democracy won.