Open Letter on the History, Impact, and Future of the Filibuster

May 4, 2021

Dear Members of the Senate,

We are historians, political scientists, and other scholars who study the Senate, American government, American history, and the challenges facing our democracy.

With critics of the filibuster advancing arguments for its reform, we write to you with the hope that a shared understanding of this parliamentary procedure, including its history and its implications for our system of government, can better inform discussion. We believe that procedural reform can strengthen the core functions of the Senate as envisioned both by the Framers of our Constitution and by generations of Americans — as well as sustain Americans’ faith in democracy. As public trust in our democratic institutions declines precipitously, we also write to you with a sense of great urgency.

While discussions about the filibuster can generate good faith disagreements, they should be grounded in the historical record. The Framers designed the Senate to be a uniquely deliberative body. They included features intended to insulate the Senate from political winds and support senators’ abilities to deliberate thoughtfully. By mandating fewer (and older) members and longer terms than the House, and by broadening representation to state-wide constituencies, the Framers reasoned that senators would be better protected from “the impulse of sudden and violent passions.” They also embedded minority protections into the Senate’s design by providing for equal representation by state. Taken together, these features are intended to provide senators with ample space to wrestle with tough issues and find compromises among themselves.

But the Framers explicitly rejected a supermajority requirement for common legislation. In the wake of the Articles of Confederation, which prescribed a supermajority for a variety of federal actions, delegates debating and drafting our Constitution were acutely attuned to the problem of gridlock. At the Constitutional Convention, they reflected a broad agreement that the supermajority thresholds had paralyzed the young government, and in turn dismissed a supermajority proposal except for three types of votes: impeachment, treaties, and constitutional amendments. After the Convention, James Madison, Alexander Hamilton, and John Jay, among other Framers, discussed their support of simple majority requirements for all other matters — the fundamental “republican principle,” as Madison put it. By and large, the Senate functioned by majority rule for over a century.

Today, the Framers’ vision of the function of the Senate has largely been inverted. Leaders on all sides agree that the Senate does not engage in the robust deliberation, debate, and compromise it once did. And it is now the world’s only legislative body with an effective supermajority requirement for common legislation.

The filibuster is not original to the Constitution: it developed in the early nineteenth century as an exploitation of the Senate’s generous rules of debate, propelled in part by proslavery senators seeking to protect slaveholder interests. Before the Civil War, filibusters frustrated the majority but typically did not succeed in blocking legislation altogether. More often, as was the norm, senators in the minority yielded to the majority after using the Senate floor to make their case. During the Jim Crow era, the filibuster became more powerful, and was used not only to frustrate the majority but to block legislation: often, to maintain Jim Crow laws and stall civil rights bills. Changes to the number of votes required to invoke cloture — to end debate on a bill — were adopted throughout the twentieth century, formalizing the ability of a minority of senators to prevent votes on bills supported by a majority. Still, for most of the last century, filibusters remained rare.

Only in recent decades have filibusters effectively created a regular supermajority threshold for routine legislation, with prior norms of restraint all but disappearing. Various scholars, including many of the undersigned, have studied the relationship between the modern filibuster and the decline in legislative productivity; the decline in legislative debate; and the transfer of power from Congress to the Executive Branch, where policymaking is more likely to experience pendulum swings from one administration to the next. We have argued elsewhere that these dynamics have impaired legislative policymaking, aggrandized executive power, worsened partisan polarization, and decreased policymaking continuity. While some of these questions are unsettled and debated in good faith, we share a common concern that today’s filibuster is, on balance, weakening Congress — while creating the very supermajority requirement the Founders clearly sought to avoid.

We fear it is also weakening democracy. The U.S. government is now saddled with more “veto points” — features in a political system that can terminate the advancement of a policy — than any other advanced democracy. Some are the result of the Framers’ intricate design of checks and balances to ensure federal bills meet appropriately high hurdles in their path to law. But others, like the modern filibuster, are novel, placing an additional and consequential veto on a policymaking process already flush with speed bumps. The result has been an inability to take action on broadly popular policies. Over the last 30 years, nearly 80 percent of bills blocked by the filibuster were bipartisan, with the average supported by five senators from the other party; and almost a quarter of all filibustered bills in the last 16 Congresses were supported by senators who represented over 60 percent of the U.S population. Some enjoyed public support reaching far higher. For instance, while 92 percent of Americans supported universal background checks on gun sales, that was not enough to overcome a filibuster of a bipartisan background checks bill after the Newtown massacre.

This dynamic is untenable for a democracy. A government unable to produce results that significant majorities of the public elect their representatives to deliver is no longer a representative government. The disconnect between popular support for policies and a government’s ability to enact them ultimately erodes public trust, deepens political cynicism, and delegitimizes that system of government. As Hamilton cautioned, minority vetoes in Congress would “destroy the energy of the government” by keeping it in “a state of inaction.” We fear that faith in our democracy will continue to decline as long as such novel roadblocks beyond what the Framers designed remain in place.

Whether through the letter of the rules or their practical usage, we encourage you to embrace procedural reform, mindful of the Framers’ unique vision for the Senate — and of their warnings. Even the late Senator Robert Byrd of West Virginia — perhaps the Senate’s most reliable defender and steward of its history — led successful efforts to limit the excesses of the Senate’s tradition of extended debate. The undersigned do not represent a consensus on exactly how filibuster reform would be completed, but we do all agree that some type of reform is essential. At stake is not only a functional Congress, but public faith in our system of government.

Sincerely,

Signatories have been vetted to the best of our ability.