It isn’t news that Democrats want to eliminate the filibuster at times when they have a slim but insufficient Senate majority, but recently President Trump, too, has voiced frustration with the obstacle of the Senate filibuster. Is it time to do away with the filibuster?
The filibuster is one of several elements that distinguish the Senate from the House, so to answer that question, we need to think about why the Senate exists in the first place.
The Senate is a result of the Great Compromise—the agreement that made it possible to adopt the Constitution by balancing the demands of large and small states with a bicameral Congress. The House of Representatives, based on population, would favor larger states and thus majorities, while the Senate, with states represented equally, would favor smaller states and thus minorities. The House would be responsive to the short-term passions of the people, while the Senate would take a cooler approach from a different perspective. It’s a system designed to make it harder, not easier, to make major changes, and thus reinforces stability.
But while the Senate was designed to be different from the House, the Senate filibuster was not originally part of that distinction. In fact, the Senate filibuster is a historical accident. It’s not in the Constitution, and it’s not in the original rules of the Senate. It wasn’t until 1837 that senators realized that an 1806 rule change made endless debate possible.
In other words, defenders of the filibuster can’t argue that it is an element of the Founder’s design.
However, the Founders’ design for the Senate WAS for it to be different from the House, and that design was dramatically compromised by the 17th Amendment, which made the Senate directly elected by the population rather than by state legislatures.
Doing away with the filibuster would make the Senate a simple majority body, approaching redundancy with the House because of the 17th Amendment. That, of course, is the intent of those clamoring to kill the filibuster, because they want to abandon the Founder’s anti-majoritarian design and move toward ever greater populism.
Such a move would only intensify political polarization and anger, because populism without anti-majoritarian safeguards will result in more frequent and more severe pendulum swings in national policy. And a conservative Supreme Court won’t step in and save us from that.
Here’s a suggestion that might appease filibuster haters while improving the Senate: How about we repeal the 17thAmendment along with the filibuster? Yes, I know it’s likely a pipe dream, but as a thought experiment, I would trade the historical accident of the filibuster for a return to the Founders’ bicameral design any day.