Ideally, we need to end the filibuster — a procedure of the minority to block majoritarian rule in the Senate through obstruction — and, therefore, terminate minority rule of the Senate. Currently, 60 senators are required to pass most normal legislation. A supermajority should not be needed for this. We cannot get important legislation through to save our democracy and planet, and the filibuster is one reason democracy is nearly dead.
Our Founders would not be surprised...
Articles of Confederation: The Disastrous Supermajority Requirement
In fact, our first government under the Articles of Confederation was set up to require a supermajority, giving the slaveowners an advantage. This first government held together through the Revolutionary War against a common enemy.
However, after the war, the weak central government (due to too much power given to the states, including the supermajority requirement) couldn’t get important legislation passed, such as raising revenue through taxes to support the government and pay debts — just like we see today. And like today, this created an economic crisis and civil unrest. (It’s a pattern of history.)
The Constitution was a quick compromise in 1787 to prevent the government from falling and European powers from moving in to seize control of the divided states. So, yes, we nearly lost democracy almost immediately from our founding.
The Constitution Has No Filibuster: Where Did It Come From?
In writing the Constitution, the Founders knew requiring a supermajority for normal legislation was a death knell to our democratic republic, so why do we need sixty senators to pass legislation?
A Loophole
The filibuster was initially an accident of circumstances. There was a procedure known as “previous question” motion to end debate, which the Senate mistakenly got rid of in 1806 at the urging of Vice President Aaron Burr for housekeeping purposes. They thought the rule wasn’t needed because it was rarely used. According to Brookings Institution senior fellow Sarah A. Binder, "Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate.”
Filibuster Weaponized by Slaveowners
While the filibuster was first used in 1837 by a group of senators filibustering to prevent President Andrew Jackson’s allies from stopping a resolution of censure against him, it became a weapon of slaveowners beginning in 1841. As the Salon article on the filibuster’s history says, Vice President John C. Calhoun,
forged the filibuster into a conscious instrument to block majoritarian democracy as part of his project of creating a durable framework for slavery in a nation he knew would eventually vote against it.
The “Talking” & “Silent” Filibusters
According to the Brennan Center,
Filibusters traditionally involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. To stage such a “talking” filibuster, a senator would hold the floor by standing and talking for as long as they could, sometimes overnight. This was popularized in the 1939 film Mr. Smith Goes to Washington. The longest filibuster ever recorded, by South Carolina Sen. Strom Thurmond in opposition to the Civil Rights Act of 1957, lasted for more than 24 hours.
But since the early 1970s, senators have been able to use a “silent” filibuster. Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.
At a minimum, the “silent” filibuster has to go. At least make the minority stand on the floor for a “talking” filibuster.
Reforming the Filibuster for Voting Rights & Court Reform
If we don’t get rid of the filibuster, we have to reform it. As the Brennan Center article points out, “Stacey Abrams, the voting rights champion and former minority leader in the Georgia House of Representatives, has called on senators to lift the filibuster for election reform legislation such as the For the People Act.”
Exactly. Voting rights, essential to maintaining democracy, must pass, and we can do that by requiring a simple majority.
However, voting rights has another hurdle, which the filibuster threatens.
Because the Supreme Court in 2013 gutted the Voting Right Act of 1965, the Court (which is even more extremist now), will do the same with any voting rights bills. Therefore, we must reform the Supreme Court, adding at least four more seats. McConnell and his cohorts stole a seat on the Court from President Obama by using a made-up “rule.” Then, they ignored that “rule” to fill the seat left by Ruth Bader Ginsburg. We must balance the four extremists; otherwise, this is a power steal, which undermines democracy.
To save democracy, we must have this trifecta of filibuster reform (or removal), voting rights reform, and court reform.