How and Why the Senate Must Reform the Filibuster

Tom McClintock
U.S. House of Representatives

Tom McClintockTom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.

This represents three serious dangers to constitutional government.

First, the legislative branch cannot function if one house proves unable to act on major legislation, and the atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch. It is perhaps the single greatest reason for the rise of the imperial executive in recent decades. President Obama’s constant refrain, “If Congress fails to act I will,” is poisonous to a constitutional republic—but it is inevitable if the legislature wastes away. Nature abhors a vacuum, and the modern Senate filibuster has created one at the heart of our Constitution.

Second, because the American peo­ple hold the sovereign authority in our country but delegate sovereign power to their elected representatives, they have every reason to lose faith in their government if their broad sentiments expressed in elections are not translated into law. This is why the belief that “my vote doesn’t matter”—a belief suicidal to a democratic republic—is increasingly heard expressed in our country today.

Third, the ability of the minority to cause gridlock in the legislative branch undermines the authority of the Constitution itself. Implicit in the design of Congress is its power to act on most matters by majority vote. Ex­traordinary majorities are reserved only for extraordinary matters such as treaties, constitutional amendments, impeachments, expulsions, and veto overrides. The practical effect of the modern filibuster is to replace the constitutional benchmark of majority rule with an artificial threshold of three-fifths.

A central concept in maintaining the balance of powers is the assumption that the members of each branch of government will jealously and aggressively defend their prerogatives against the others. So why do senators allow their body to be paralyzed?

Many argue that the current 60-vote cloture threshold is necessary to prevent one party from running amok; that the requirement for an extraordinary majority assures bipartisanship and compromise. They rightly warn that if legislation is to stand the test of time, it must have a certain degree of bi-partisan consensus that the cloture rule facilitates. Yet when one looks at the Senate today, it’s hard to find much collegiality or compromise, both of which require the give-and-take of good-faith deliberation. Nor is compromise possible if the matter to be compromised can’t be considered. If the minority can block an initiative by a mere threat to filibuster, it has no incentive to pursue compromise.

Republican defenders of the modern filibuster note that the greatest growth of government occurs when Democrats hold both the White House and Congress. The current rules, they argue, are an essential brake for the minority to use at such times. But unfortunately, these rules have proven even more effective at blocking legislation that shrinks government. The result is a ratcheting effect that locks in every government expansion, even those that prove disastrous.