Talk of amending Senate Rule 22, prompted most recently by the frequent use of the filibuster to stymie Democratic initiatives, and the resulting pushback by some Senate Democrats, raises questions about the purpose and desirability of the institution. Critics understandably lament the filibuster's anti-democratic consequences: A minority can prevent the majority from legislating, plain and simple. In that sense, the filibuster undermines democratic principles. The party who commands the most electoral support should generally be able to implement its preferred policies.
Yet defenders of the filibuster find virtue where the critics see vice. The filibuster applies necessary brakes on majoritarian initiative. Otherwise, majorities might get carried away and ignore those who, although in the minority, still represent legitimate points of view. The filibuster also ensures that narrow majorities cannot impose dramatic policy change against the wishes of large minorities. For these purposes, whether a majority is narrow and likewise whether a minority is large ultimately depends on the number of votes required for cloture.
Both sides make a fair point. Majorities should rule. Large minorities should have protections. (Of course, "minorities" in this context refers merely to partisan or policy minorities, whose minority status is not permanent.) But there is something missing from much of the recent pro-versus-con filibuster talk. The better question asks not whether the filibuster is desirable, but what form of it is best.
When the Senate in 1975 changed the cloture rule to reduce the number of votes required to end a filibuster from 67 to 60, it also allowed speechless filibusters. No longer were those who wanted to halt Senate business by pirating the floor required to do anything. Instead, filibusterers can essentially "call" a filibuster, and unless the majority commands 60 votes to end "debate," that is that. Many argue that this easy filibuster has seen abuse, especially recently. It has devolved from a technique to protest uncompromising majoritarian policy into nothing more, and nothing less, than a supermajority voting rule: Legislation now requires 60 votes.
There is more to it, however. The problem with the silent filibuster is not simply that filibustering has become too easy and thus too frequent. Rather, the silent filibuster is undemocratic because it impedes rather than fosters democratic deliberation. That is, the traditional--"talking"--filibuster focused the attention of the public on the matter at hand. The talking filibuster thus raised the salience of the legislation it targeted, as well as the merits of the opposition to it. The talking filibuster inspired debate over whether the majority's policy was desirable, or whether the filibusterers' protests were justified. In other words, the traditional filibuster fosters democratic deliberation, and not merely within the Senate as its defenders emphasize, but beyond it.
After all, the spotlight of a talking filibuster puts pressure on the majority party to relent, and pressure on the filibusterers to stand down. In so doing, the convictions of both are tested in the light of the public's response to both. Is the majority asking for too much too fast, or are the filibusterers poor-sport obstructionist? The occasion of a traditional filibuster prompted such conversation within the democracy at large. This is not to say that whichever side "won" was therefore right or necessarily enjoyed the public's blessing. But the spectacle of the filibuster focused public as well as media attention to concrete policy choices in ways that promoted democratic deliberation.
No more. The speechless filibuster neither tests the strength of competing convictions, nor subjects the majority and the minority alike to public scrutiny. To the contrary, the speechless filibuster goes virtually unnoticed by the public. The Senate's filibuster should not be eliminated. It should be revived.
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