Why The Filibuster is a Fraud

This podcast is part of the democracy group.

This is Larry Lessig. This is another episode of the podcast Another Way. It's a special episode because it's basically stealing content. But it's my content. I'm allowed to steal it. But stealing content from a video I've done to try to explain what exactly is so crazy about the filibuster. I find that so many people have no historical context about just how insane this current institution has become. And so, in this talk, which reached all of nine minutes, which of course in YouTube land is inexcusably long, but this talk tries to lay out exactly what the problem with the current modern filibuster is. I hope you'll enjoy this short episode of Equal Citizens Another Way. I hope you'll share it. You can watch the video. It's got fancy graphics on our website. And we will be following and pressing the question of how to reform, how to improve the Senate by abolishing or reforming the filibuster. So stay tuned for that recording and for a commentary afterwards about how we might proceed.

There's a lot of talk about the filibuster these days, the procedure in the Senate ostensibly designed to assure that every senator has the chance to say whatever they want about any matter before that body. In the last 120 years, the filibuster has been increasingly deployed for the purpose of slowing or stopping legislation, leading ordinary people to ask the very obvious question, is that okay? Is that really what, what the Constitution requires? And the answer to that reasonable question is, hell, no. The filibuster is a fraud, or we should say the quote unquote, or modern filibuster is a fraud. And my purpose, in the couple minutes I might have your attention here, is to convince you that it is unjustifiable in any representative democracy. So here's how the filibuster works. It's actually very simple. If any senator requested, literally any one senator, then a bill can be transformed into one that effectively requires 60 votes for it to pass the Senate, so long as it's not a confirmation or within budget reconciliations. The senator has the power to say, I want 60 senators to support this bill before I will allow it to become a bill of the Senate. That's it. It's just that simple. But the consequence of that simple rule is to transform the Senate from a majoritarian institution where the majority rules to a super majoritarian institution where the majority must beg the minority for the capacity to govern. Now, those who defend the filibuster say this is Justified, first, on the basis of tradition, second, on the basis of minority rights, and third, because of the importance of deliberation. Let's take each of these in turn. First, tradition. Look, there's no doubt that the Constitution of the United States embeds a fundamental principle of majoritarian authoritarian democracy. There's no filibuster clause anywhere in the Constitution. And indeed, for the decades after the Constitution was enacted, the Senate had a simple rule that said that if a majority chose to end debate and move to a vote on a bill, that majority would prevail. But we should not forget that our Constitution is not actually the first Constitution of the United States. The first Constitution was the Articles of Confederation, and that was a super majoritarian constitution. It required super majorities, up to 70% of the states to pass important legislation. And so we might look at that and ask, was that system a success? Did we see lots of states working together to address the hard problems of the age? And the answer to that question is well known to everybody who knows about American history. No. That was a total and utter disaster. That Constitution had to be ripped up by our framers and, and they crafted in its place a constitution that embedded a fundamentally different idea. Majoritarian democracy. Okay. 50 years after our Constitution was crafted, this man, John C. Calhoun, began to innovate, to find hacks to delay action in the Senate for bills that John Calhoun did not like. This was the kind of proto filibuster. It wasn't really to stop the bills, but just to slow down their consideration. And Calhoun defended his innovations on the basis of, quote, minority rights. And second, on the basis of the importance of deliberation. Let's take each of these in turn. First, minority rights. The critical thing to recognize about the, quote, minority rights that John C. Calhoun was talking about is that they have nothing to do with minorities. John C. Calhoun didn't give squat diddly a about minorities. He thought slavery was a positive. Good minority for him just means the side with fewer votes. We might call them the losers. They should win too, sometimes. At least, Calhoun thought. Now that's an interesting idea, kind of weird in a democracy, but the key to see is that it's not about protecting minority rights. Indeed, if you look at our history, the only effective filibusters in the period 1877 to 1964, and by effective, I mean effective in blocking a bill, not just slowing it down, were filibusters to block civil rights, not a pro minority rights position. Okay, what about deliberation, the filibuster? It is said Protects deliberation. Well, maybe at one time, notice the old font there. But not anymore. Maybe with the old filibuster, but not with the modern filibuster. And the evidence for that is made most clear in the recent outrage with the filibuster in the for the People act in the Senate on June 22, 2021. Because on that day, 50 senators voted to begin debate, begin debate on that critically important reform legislation. But debate couldn't begin because of the modern rules of the modern filibuster. It was different before. Under the old filibuster, at least, you had to speak. Strom Thurmond had to stand on the floor of the Senate for 24 hours to slow the passage of the 1957 Civil Rights Bill. But now, with the new and improved filibuster, with the modern filibuster, there's no need to speak. Just send a leader a text. I want to filibuster this bill. And after you send the text, the debate is stopped unless 60 senators say no to you. The reality of the modern filibuster is the modern filibuster stops debate. The modern filibuster gags debate. The modern filibuster blocks deliberation. Okay, so the filibuster is not about deliberation. It's anti deliberation. The filibuster is not about minority rights. It's anti minority rights. The filibuster does not respect our tradition. It's contrary to the values of our founding. It's a corruption of the majoritarianism at the core of the. Of our Constitution. So then, who likes this system? Well, it's not very hard to explain this. If it takes 60 votes to pass anything through the Senate, that means it takes just 41 votes to block anything in the Senate. And those 41 votes are easy to cobble together, given the extremely partisan, polarized nature of American politics today. If you look at the states where Trump won By at least 10 points, sometimes much more than 10 points, it is trivial to put together 42 votes from 21 states, representing just 21% of America's population. 21% have the capacity to block anything in the Senate, 21% representing the most extreme far right in America. So what the filibuster does is it gives the far right a veto over legislation in the Senate. It thus gives the far right control over what our government does. The lesson here is clear. The modern filibuster holds democracy hostage. It blocks the will of the majority on the basis of the most extreme Minority. It is a democracy defeating device. And if it's not clear from what I've said so far, in my view, it must go. Now, you can check out where your Senator is on this important question at Equal Citizens US Itmustgo go there, share this talk, and say to your Senator, where do you stand on the question of representative democracy?

Thanks very much. Okay, that's the talk. Here's what the talk didn't address. What could we do about the filibuster? And obviously there are a number of reforms, each of which would have a radically improving effect on how the filibuster operates in our Senate. My own preference is that we go back to the Framer's position that we just say that if a majority of the Senate actually prefers that we vote on a bill, the bill ought to be voted on, period. That there's no reason to give the minority the power to block or even to slow the consideration of a bill. But if you didn't accept that most extreme position, one step further closer to the current position is an idea that's been advanced by my colleague Matt Stevenson and his colleagues about changing the filibuster into a majority of the majority rule. So the way that would work is if a majority of senators who represent more citizens than the Senators on the other side vote to end debate and bring a bill to a final vote, then that would end debate and bring a bill to a final vote. This rule would guarantee that the will as expressed in the Senate is a will that can be said to represent the majority of America. And that will representing a majority of America at least should have an effect inside the Senate. It's different from the rule that says we just abolished the filibuster. And because obviously we can have a majority in the Senate who don't represent a majority of America, small states, which have famously more senators per voter than big states, can aggregate together to produce a majority without necessarily representing a majority of America. This corrects that flaw and makes it maybe even more majoritarian than my first preference would make it rule that says if a majority wants a vote, then there is a vote. Okay. The third change would be a change that just simply requires that you earn the right to filibuster, that you must stand up and you actually speak to continue to hold the floor, to slow a final vote. And if the other side or the side that's trying to slow or stop a bill grows exhausted, or they can't maintain the movement to continue to speak and deliberate on the floor of the Senate, then that stops deliberation and the vote on the bill would proceed. The advantage of this is at least pretends to have something to do with what the original filibuster or the traditional filibuster was trying to achieve, which is deliberation. But as I explain in the talk which was stolen for this podcast, deliberation is not advanced by the modern filibuster, because the modern filibuster blocks deliberation until there are 60 votes to support it. So at least that change would require people to speak. And if they don't spend all their time reading from the dictionary or Dr. Seuss, which of course Senators have been known to do, then maybe that would facilitate broader understanding of the underlying issues at stake in any particular bill.

Okay.

Or we stick with the current regime. The current regime in a world where the minority leader, Mitch McConnell, believes it appropriate to invoke filibuster whenever anybody on his side wants it, which is a radical change in the norms of the Senate, something completely unheard of for all of the 19th and 20th centuries, but one that increasingly debilitates the opportunity of the Senate to actually consider important legislation. Because as I explain again in the talk, given the way the Senate is divided and given the partisan character of America today, you can easily cobble together 21 states, meaning 42 votes, which is enough to block any legislation. And those 21 states representing the most far right of American politics would represent just 21% of America. There is no reason for that ability of an ultra minority to block the ability of a majority to rule. Indeed, there is no reason for us to accept what is in effect a minoritarian democracy. The framers of our Constitution knew minoritarian democracies. That's what the Articles of Confederation created. It was a failure. And so too will this democracy be a failure. If, if we can't get back to majoritarian rule, maybe things like infrastructure will slide past in this Congress, at least when stripped of all climate change related issues. Maybe budget reconciliation will get important parts through, maybe nominations to courts, and the Supreme Court won't be blocked by the minority. All of that, of course, is good. But in a world where the most extreme 21% of America has the power to block what our Congress considers, there will be no climate change legislation that passes this Congress. There will be no legislation that addresses the minimum wage. There will be no legislation that deals with student debt or with health care. There will be no legislation that responds to the demands of the majority of America, which has expressed their demands by electing a government the majority of which would support each of those changes. We are not a representative democracy if our democracy does not represent what the majority of America wants and ours does not join us in the fight to make it so that it might. This is Larry Lessig. Thanks for listening. These podcasts are produced by citizens us. You can find us on the web at Equal Citizens Us Anotherway. Please share these podcasts and and please go to that website to give us feedback or ideas, comments, things you think we should be talking about as we make this final push to get everyone behind Congress doing the right thing here, which involves, of course, in my view, fixing democracy first. Thanks for listening.

Sam.