The Senate filibuster, which today requires 60 votes for virtually every piece of legislation, is bad. It's a big reason why ObamaCare is so stingy, why there was no climate bill in 2009, why it took decades to overthrow Jim Crow, and on and on.
But I didn't quite realize how bad the filibuster was until I read Kill Switch, by Adam Jentleson, who was a staffer under former Senate Majority Leader Harry Reid (D-Nev.). The modern filibuster is not just an obstacle to passing things through the Senate, though it is that — it is also so effective an obstacle that it has virtually ended routine governance, and created a slew of toxic side effects in the process.
The filibuster as it exists today has helped centralize congressional power in a handful of party leaders, fueled corruption, and stoked polarization. It is a blood clot at the heart of our political system.
One piece of Senate arcana Jentleson explains in the book is that contrary to the popular myth of a filibuster requiring a senator to talk indefinitely, and also contrary to the commonly-heard idea now that one needs 41 votes to initially execute a filibuster, today it only requires one single Senate staffer. For a variety of reasons, the Senate leadership sends out a "hotline" email canvassing their members' intent to filibuster a bill whenever one comes up for discussion. "When you get a hotline, all you have to do is call the cloakroom, tell them the senator you work for intends to place a hold on the bill, and the bill is filibustered," Jentleson writes. (This form of the filibuster only dates back about 15 years.)
That is why today virtually every single bill is filibustered — and that is why "regular order" legislation basically does not happen anymore. Instead of the Schoolhouse Rock story where individual bills are voted on as they come up, consequential legislation now only ever passes when there is some kind of crisis, like when the government is about to run out of money or breach the debt ceiling, or there is a pandemic, or something similar. Then typically Congress passes a monster 3,000-page super-bill at the last second jammed with a whole bunch of vital business and pet priorities that have built up over the preceding year or so.
That in turn drastically strengthens the party leadership in Congress, because they control the floor schedule, and because they coordinate the party discussion about what can be included — which necessarily means disempowering committee leaders and backbenchers. There used to be niche careers in politics, where someone would get elected to the House or Senate, learn the ropes of some particular issue, and make a name for themselves working on it (think Sen. Robert Wagner on unions or Rep. Henry Waxman on environmental protection). But not much anymore.
Because there is no legislating through regular order, the rewards for putting in that work in either house are tiny. If you are lucky (particularly if you suck up to leadership), you might get your pet idea folded into a super-bill, but that is a lot harder with everyone else trying to do the same thing, and you won't get nearly as much credit for it if you succeed. If you are not in the leadership — and there is little prospect of the average representative or senator making it that far — you basically won't ever get to wield real power. This is surely part of the reason why so many Republicans today view serving on committees as some kind of pointless nuisance, or indeed think of a seat in Congress as a route to media celebrity (though it is not the only reason). It's also part of the reason why so many up-and-coming Democrats have quit Congress to run for state office.
These super-bills are also a godsend for lobbyists, because there are endless places to tuck away some corporate giveaway. Indeed, they are often so big that individual senators have little idea what is in them, and wouldn't have time to read through them carefully even if they wanted to. Corruption is both easier, and the punishment for enabling it is lower — after all, one can't really be faulted for voting to keep the government open or raise the debt ceiling.
Finally, the filibuster stokes partisan polarization. Filibuster defenders often argue that it enables bipartisanship ("I believe very strongly in bipartisanship," said Senator Joe Manchin (D-W.Va.) as a reason he would preserve it) but as Jentleson argues, the reality is the opposite. When a minority can block legislation outright, there is a strong partisan incentive to refuse to bargain and cast the opponent's bill as being Hitler incarnate. But when a majority's bill is going through for sure, then there is a counter-incentive for dissenters to cut a deal. Jentleson shows that is part of why so many big laws in decades past ended up passing with huge majorities despite being quite controversial — many of the bill's opponents saw the writing on the wall and decided to get something they wanted rather than casting a doomed no vote. By the same token, this reduces the incentive to castigate the opposition with incendiary rhetoric, because doing so would nix the chance of getting a tasty amendment passed.
More broadly, I suspect these examples of bipartisan cooperation could deflate a least a little of the boiling hatred of liberals on the right. For instance, there has recently been some discussion about the best way to help parents with the cost of raising kids, with President Biden and Rep. Richie Neal (D-Mass.) pushing an expansion of the Child Tax Credit. However, a rather astounding alliance has emerged between leftists like Matt Bruenig, and conservatives like Ross Douthat and Senator Mitt Romney (R-Utah), who argue that a child allowance is a better approach. Under regular order, this might be hashed out in some kind of compromise fashion that got significant bipartisan support — in the process signaling to the Republican base that Democrats are not Satanists who eat children. But because the Biden plan is part of a massive pandemic relief package going through budget reconciliation so it can sidestep the filibuster, Romney's proposal is getting zero support from other Republicans and will likely go ignored by Democrats.
The cleanest and most obvious solution here would simply be to delete the filibuster. But given that the deciding senators do not (yet) agree, it would be easy to imagine reforms that would make it much harder to use. For instance, we might require 40 senators to actually register the objection on the floor of the Senate, or introduce time limits, or bring back the old-fashioned requirement that senators speak continuously. Or we could require that any filibuster could not block a bill supported by states representing a majority of the population. As Jentleson details, back when it was a big pain in the neck to launch a filibuster, minority parties did it a lot less.
But it is simply untenable to allow this system whereby any member of any Senate staff can bottle up any normal legislation to be the hinge point of the entire American government. It's pointless, toxic, internationally humiliating — and again, not even a real Senate tradition. Bring back majority rule!