Ending the Filibuster Won't Fix the Senate's Dysfunction
By Richard A. Arenberg
January 4, 2022
Senate Minority Leader Mitch McConnell (R-Ky.) at his end-of-the-year news conference on Dec. 16. (Jabin Botsford/The Washington Post)
As 2022 kicks off, the Senate is marked by an inability to address even the nation’s most pressing problems, thanks to procedural warfare and a toxic atmosphere of mistrust and demonization.
To address these issues and to pass legislation on crucial issues such as voting rights with a simple majority, some Democrats would like to alter or eliminate the filibuster, which necessitates 60 votes to advance most legislation. Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin III (D-W.Va.) have impeded this effort, making it unlikely to succeed. But neutering the filibuster would probably make the chamber’s problems worse. Why? Because it would exacerbate the real causes of the Senate’s dysfunction: extreme partisanship and ideological polarization.
The Senate used to be the cradle of compromise, the place where legislative minorities were protected. But that has changed significantly over the past 40 years.
The 1980 election was an important signpost. Ronald Reagan swept into office on a tide of conservatism, bringing Republican Senate candidates with him. The GOP took control of the Senate for the first time in 28 years — ending the longest dominance of the chamber by one party in American history. In all, the Republicans gained 12 seats, and many of the liberal lions of the Senate, such as Frank Church (D-Idaho) and George McGovern (D-S.D.), lost. Significantly, arch-conservative Republicans such as Steve Symms (R-Idaho) and Jeremiah Denton (R-Ala.) supplanted them. The chairmanships of major committees shifted to conservatives such as Jesse Helms (R-N.C.), Strom Thurmond (R-S.C.) and Barry Goldwater (R-Ariz.).
The parties were increasingly splitting ideologically. The gulf between them had opened and has only widened since, sparking procedural warfare and fractious brawls that intensify distrust and enmity between the sides.
Judicial nominations played a major role in this process. A Democratic majority (the party regained control of the Senate in 1987) triggered partisan warfare by rejecting Supreme Court nominee Robert Bork in 1987 largely on ideological grounds.
On the day President Reagan announced Bork’s nomination, Sen. Ted Kennedy (D-Mass.) declared on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids and schoolchildren could not be taught about evolution.”
In the end, 58 senators voted against Bork — including five Republicans — the largest margin of defeat in history for a Supreme Court nominee. His name became a symbol of conservative grievance. A new verb — to “bork” — emerged, defined by Merriam-Webster as “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”
Two years later, for the first time in 30 years, the Democratic Senate majority rejected a Cabinet secretary nomination: President George H.W. Bush’s selection of former senator John Tower (R-Tex.) to be secretary of defense. After accusations of womanizing and heavy drinking drove his defeat, Tower complained, “No public figure in my memory has been subjected to such a far-reaching and thorough investigation, nor had his human foibles bared to such intensive and demeaning public scrutiny.”
In 1991, the brawl over the sexual harassment allegations against Supreme Court nominee Clarence Thomas deepened the fissures in the Senate. The Democratic-controlled Senate narrowly confirmed Thomas, 52 to 48, with 11 Democrats voting to confirm. But both sides came out of the ordeal feeling aggrieved.
The historic 1994 elections, which swept Republicans into power in both chambers of Congress for the first time in 40 years, triggered another leap forward in extreme polarization.
Led by Rep. Newt Gingrich (R-Ga.), House Republicans nationalized the elections by pledging to enact an array of conservative policies that they titled the “Contract With America.” Once in office, the House majority within 100 days passed most of them, but Senate Democrats blocked most of the measures using the filibuster.
Gingrich’s ascendancy to speaker of the House was built on his conviction that the nearly permanent Republican minority in the House was far too conciliatory to Democrats. He shattered that culture of compromise, aggressively stoking partisan warfare. While the Senate remained less partisan and polarized than the House, moderates dwindled there, too, and as increasing numbers of former House members joined the upper chamber, they brought with them Gingrich’s pugilism and partisan warfare tactics.
In 1998, the impeachment of President Bill Clinton — the first presidential impeachment since 1868 — was a highly partisan process, deepening the antipathy between the parties. In the Senate, no Democrat voted to convict.
The bitter dispute over the 2000 election only exacerbated things. A 5-to-4 Supreme Court, with the majority all Republican appointees, ended a recount in Florida, delivering the presidency to George W. Bush by 537 votes. Bush’s victory marked the first time since 1888 that a president captured the electoral college while losing the popular vote.
The 2000 election left the Senate split 50-50, with Vice President Richard B. Cheney’s tiebreaking vote giving Republicans control. But in June 2001, Sen. Jim Jeffords of Vermont, angered by Bush’s conservative budget and offered a committee chairmanship by the Democrats, left the Republican Party and dramatically handed Democrats control of the chamber.
After Republicans regained control in 2003, in an unprecedented move, Democrats blocked 10 of Bush’s circuit court nominations by filibuster, arguing that they were outside of the mainstream. This triggered a showdown in 2005, with Senate Majority Leader Bill Frist (R-Tenn.) threatening to use a controversial parliamentary ploy, labeled the “nuclear option,” to permit confirmation of the judges with a simple majority vote. Only a compromise deal among 14 moderates, seven from each party, ended the showdown and averted the rules change.
The election of Barack Obama worsened the friction. Senate Minority Leader Mitch McConnell (R-Ky.) famously declared, “The single most important thing we want to achieve is for President Obama to be a one-term president.”
Obama’s signature health-care law, the Patient Protection and Affordable Care Act passed with zero GOP votes, was a departure from how Democrats had worked with Bush on his signature tax cuts, education legislation and a Medicare prescription drug benefit early in his presidency. Republicans spent the next eight years trying to repeal the health-care law. The Republican House voted more than 50 times to repeal, blocked each time by the Senate.
And the partisan battle over judicial nominations intensified further. In 2013, Senate Majority Leader Harry M. Reid (D-Nev.) did what the Republicans had threatened to do eight years earlier: obliterate the filibuster on presidential nominations except for the Supreme Court.
Republicans regained control of the Senate in 2015, and a year later, in a shocking and unprecedented move, Majority Leader McConnell blocked consideration of a replacement for Justice Antonin Scalia during Obama’s last 11 months in office.
McConnell’s stunning refusal to consider any nomination reflected the dysfunction of the Senate. And it only grew worse from there, stoked by multiple impeachments, further warfare over judicial confirmations, including three highly controversial Supreme Court nominations and more during Donald Trump’s presidency.
Trump’s alarming refusal to concede the 2020 election and false claims that the election was stolen triggered an insurrection on Jan. 6, 2021. The insurrection exposed that a real threat exists to democracy. But the threat doesn’t come from Trump alone. The parties view each other more as enemies than merely opponents, and one of them continues to walk away from democratic values.
That’s why there is a deep need to return to good-faith negotiation, compromise and legislating. Further weakening the Senate’s role as what James Madison called “an anchor against popular fluctuations” by allowing simple majorities to pass legislation for partisan advantage could well make things even worse. When majorities are able to work their will without input from the minority, it risks policy flipping back and forth.
No less than George Washington worried about such instability. In his farewell address he labeled “the alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension,” a “frightful despotism” that had produced “the most horrid enormities” in other countries. Well-intentioned though filibuster reform proposals may be, that warning remains salient today.
Richard A. Arenberg, a visiting professor of political science at Brown University, is the author of “Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress” and a co-author of “Defending the Filibuster: The Soul of the Senate."