History Reveals that Getting Rid of the Filibuster is the Only Option

The left is furious that Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) say they refuse to change the Senate rules to enable the slim Democratic majority to pass initiatives ranging from police reform to voting rights protections to a $15 minimum wage with a simple majority. This debate has spotlighted the Senate’s supermajority requirement under which 60 votes are necessary to pass most legislation.

Indeed, the fate of President Biden’s bold agenda depends on the outcome of this arcane procedural debate. In an era of gridlock and polarization, it seems unlikely that 10 Republican senators will support Biden’s key proposals. Democrats can either wage a procedural war or risk a presidency with little reform legislation. Manchin recently expressed openness to incremental filibuster reform, but the lesson of Senate history is that filibuster reform only has worsened the obstruction of the popular will.

The Founders understood the problem of minority rule. Under the Articles of Confederation, Congress couldn’t act unless nine of the 13 states agreed to legislation, which left the federal government unable to address pressing national problems ranging from trade to the military to creating a court system.

According to Alexander Hamilton, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” This rationale in Federalist No. 22. explains why Hamilton and his fellow Founders set up both houses of Congress to work by simple majoritarian rules.

One key procedural way to enforce this vision was the “previous question rule.” The Constitution provided in Article 1, Section 5 that each chamber could construct its own rules, and both chambers included the previous question rule in 1789.

But in 1806, at the behest of Vice President Aaron Burr, the Senate eliminated its previous question rule. Burr wanted to streamline the Senate’s rules to make it a truly important deliberative body. Majorities had not yet used the previous motion rule to squelch debate, so senators did not understand the consequences of its elimination. In the ensuing decades, however, they learned that without it, a member could talk incessantly until the time to vote on a particular measure had expired. The result: the slow birth of the filibuster, first with a variety of delaying tactics and eventually the emergence of filibuster by extended floor debate.