Mitch McConnell
Senate Majority Leader Mitch McConnell Credit: Gage Skidmore/flickr

The persistence of the filibuster is one of the deeper political mysteries of the age. As a legislative tool, it has a profoundly dishonorable history. People remember it as the tool that Sen. Jefferson Smith used to defeat Sen. Joseph Harrison Paine and his corrupt political machine. But Jeff Smith and Joe Paine never existed; they were fictional characters played by Jimmy Stewart and Claude Raines in Frank Capra’s 1939 film Mr. Smith Goes to Washington. Jeff Smith was based loosely on Montana Sen. Burton K. Wheeler, a Democrat who became the victim of a sham investigation after he exposed corruption in Warren G. Harding’s Justice Department; but no filibuster figured in that tale.

The filibuster’s true pedigree is as an instrument of white supremacy. It was used throughout the first half of the 20th century by Southern senators to block federal anti-lynching legislation, and, later, to delay passage of the 1957 and 1964 Civil Rights Acts. When people think of the filibuster, they shouldn’t think of Mr. Smith Goes To Washington; they should think of Billie Holliday’s haunting recording of “Strange Fruit” (written by Abel Meeropol, who would later adopt the young sons of Julius and Ethel Rosenberg after they were electrocuted for violating the Espionage Act of 1917; but I digress).

The filibuster has been dying over the past decade, but it’s been dying way too slowly. The Democrats in 2013 eliminated the filibuster for all presidential nominations excepting nominations to the Supreme Court. This was decried as “the nuclear option,” but its effect was entirely salutary. The Republicans in 2017 then eliminated the filibuster for nominations to the Supreme Court. The move was decried once again as “nuclear,” yet life went on.

It’s long been assumed that if the Senate goes Democratic in November that the last remaining filibusters—those for legislation—will get “nuked” as well. At John Lewis’s funeral, former President Barack Obama rightly called the filibuster a “Jim Crow relic” and called for its elimination.

But Joe Biden was until quite recently a stalwart defender of the filibuster, and although he now says he’s willing to consider its elimination, he’s waffling a bit (“It’s going to depend on how obstreperous [Republicans] become”). Now the Wall Street Journal reports that five members of the 47-member Senate Democratic caucus oppose eliminating the filibuster. That’s enough to block its elimination. And even though the caucus will be differently configured when the 117th Congress convenes early next year; I still find myself wondering what in hell the holdouts are scared of.

The theory of the filibuster is that it comes in very handy when your party is in the minority. But Senate Democrats have used it remarkably little while they’ve been in the minority during the Trump administration. Let’s review the more contentious bills passed during this period.

Congress used the Congressional Review Act to overturn a truckload of regulations at the start of Trump’s presidency. Democrats weren’t happy! But filibustering wasn’t an option because the CRA required only a majority vote. Congress passed a multi-trillion-dollar tax cut at the end of 2017, 51-49. Again, Democrats weren’t happy! But because of Senate rules the tax giveaway couldn’t be filibustered, either.

The Senate voted, twice, to block Trump’s declaration of a national emergency allowing him to divert funds that Congress had declined to appropriate to build a wall along the southern border. Senate rules prevented these votes from being filibustered, too. (The second vote ended up being merely symbolic because it fell short of the two-thirds majority necessary to override Trump’s veto.) Finally, the Senate passed the $2 trillion CARES Act in March to address the Covid crisis. That bill passed unanimously—far in excess of the 60 votes that would have been needed to end a filibuster that never materialized.

Am I missing something?

A lot of people have wondered why Senate Majority Leader Mitch McConnell didn’t move to eliminate the legislative filibuster. The most immediate explanation would be that the need never came up. Trump was never terribly interested in passing legislation of any kind—he preferred issuing executive orders, even ones that didn’t achieve anything—so the filibuster never became an issue.

Granted, that’s not how Republicans see it.

Conservatives like to gripe that under Trump the number of Senate cloture motions filed—i.e., votes requested to end Senate debate, widely judged a decent metric for the number of filibusters—has been off the charts. They aren’t wrong. There have been 245 during the current Congress. Ten years ago I was deeply distressed that the number of cloture motions had risen to 139, and before that their number never even broke 100.

But appearances can be deceiving.

Take a look at what those Trump-era cloture votes have been about. You’d expect them to be about legislation, because legislation is the only thing you can filibuster nowadays, right? But they haven’t been! In the current Congress legislative cloture motions have accounted for about 20 of those 245 cloture motions, and most of those concerned bills you never heard of. In the previous Congress it was pretty much the same story.

Trump-era cloture votes have mostly been votes not to unblock legislation but to end debate on nominations—even though you can’t filibuster a nomination. Senate Democrats have been “filibustering” Trump nominees, many of whom have been ludicrously unqualified, by compelling the Republican majority routinely to call a cloture vote. Imposing cloture on a nomination requires only 51 votes, as opposed to the 60 that nominations used to require, so if you have the votes to end debate you also have the votes to confirm. But Democrats have been requiring the votes anyway—to buy time perhaps to persuade a few Republicans to oppose a bad nomination; to protest a bad nomination, or just to be obnoxious—and so the number of cloture motions has skyrocketed. But the tactic hasn’t fouled up many nominations, because it can’t.

Put simply, the number of cloture motions is no longer a measure of out-of-control filibustering. It’s merely a measure for how much bad feeling there is right now within the U.S. Senate. (That’s reflected also in use by the minority of more arcane delay tactics.) Which of course has a lot to do with Donald Trump being president.

At the risk of sounding conceited, I sort of saw this coming back in 2005 when I urged Senate Democrats to let the Republican Senate majority eliminate the filibuster. “As things stand now,” I wrote, “Democrats hold three more than the necessary 41 votes to block foolhardy legislation proposed by Republicans. Without the filibuster, they’d be seven votes short. The GOP agenda would become the law of the land.”

So why should Democrats give up the filibuster? Because, I argued:

What agenda would that be? Privatizing Social Security? That’s opposed by a significant proportion of the president’s own party. Establishing a flat tax? Never going to happen. According to a recent Wall Street Journal poll, fully 41 percent of all Republican voters oppose even [Senate Majority Leader Bill] Frist’s half-elimination of the filibuster! If that percentage were reproduced in the Senate, the GOP could successfully filibuster its own reform!

The fact is that the GOP doesn’t have an agenda. It has impulses: to cut taxes, to increase Pentagon spending, and to mollify the Christian right wherever possible. Does it act on these impulses? Of course. But what mostly gives the party appeal to the electorate is its ability to scream and yell while seldom being granted the opportunity to ban abortion or eliminate the Securities and Exchange Commission or declare war on France. It stirs things up satisfyingly, while never requiring anybody to pay the price. If the Senate eliminated the filibuster, Republicans would have to choose between putting their money where their mouth was or just shutting up. Either choice would put Democrats in a better political position than they’re in right now.

That is, I think, a pretty accurate description of the world we inhabit today, in which the Republican National Convention doesn’t even bother to concoct a party platform. McConnell can’t get any bill passed that might be filibustered, but you don’t hear him complain much about that because he doesn’t especially want to pass any legislation at all. The stuff McConnell absolutely needs to get through the Senate typically can’t be filibustered anyway. Very possibly he’s glad that some of the crazier stuff Trump might want to legislate is rendered impossible by the filibuster. But mostly he’s an anti-government Republican who wants to cut taxes and bollix regulation. And you don’t need a 60-vote supermajority to do that.

Our ideas can save democracy... But we need your help! Donate Now!

Timothy Noah

Follow Timothy on Twitter @TimothyNoah1. Timothy Noah is a contributing editor of the Washington Monthly. He is the author of The Great Divergence: America's Growing Inequality Crisis and What We Can Do About It.