I have mixed feelings about the filibuster.
In the past I’ve supported it as a means of fostering deliberation, to slow down the legislative process so that the Senate can fulfill its designed role as a “necessary fence” against the presumed “fickleness and passion” of the larger and more-representative House of Representatives, in James Madison’s words. At the same time, however, I’m persuaded that it should not serve as a permanent supermajority requirement for legislation. The Constitution, after all, does not require supermajorities, and Senate rules should not cripple the constitutional order.
Filibuster use against legislation has exploded right along with American polarization, and the resulting gridlock is thoroughly defeating majority rule. That means virtually all bills need 60 votes to pass. (The filibuster against nominations has already been eliminated.) So, is there a reform idea that harmonizes the intent of the Senate to serve as a thoughtful deliberative body while retaining majority rule?
Two young conservatives, Thomas Koenig and Thomas Harvey, floated a fascinating idea recently in The Dispatch, my former writing home: “If a bill can’t obtain a filibuster-proof supermajority,” they write, “the filibuster should be reformed so that the bill can still pass through the Senate if it obtains a simple majority twice — over the course of two successive Congresses, with an election in between.”
Not only does this proposal preserve the deliberative purpose of the Senate, it also would enhance participatory democracy. A party with popular (but not filibuster-proof) majorities can both run on its proposals and, crucially, follow through. As of now, candidates for both houses of Congress are constantly making promises they can’t keep.
I don’t want the Senate to be a smaller version of the House, but the current gridlock is crippling our nation’s Madisonian vision for democracy. As Koenig and Harvey remind us, Madison called majority rule the “the fundamental principle of free government.”