I have always sided with conservative scholars when it comes to proposing changes in the Constitution or long held political traditions. Why change something that has served us so well for a long time. Frequent calls to eliminate the electoral college still seem risky to me. The Framers had good reasons for embracing it. Recent history suggests that it might have a serious role to play if anti-democratic forces continue to create havoc with the political system.
Just the same, the existing political system and rules make one wonder if there is not the need for some changes as the Republic moves through the twenty-first century. After all, we have made changes in the past as evidenced by the twenty-seven amendments to the Constitution. I have come around to supporting term limits for representatives and senators. The fact is that incumbents are reelected at over a 90% rate, meaning election is often a job for life. Most of us continue to vote for our representatives often enabling undeserving ones to survive year after year much like tenured professors who abuse their responsibilities.
All of this is by way of saying it might be time to ditch the filibuster. It is not constitutional and not a tradition steeped in history. It grew out of a mistake when Aaron Burr in 1806 threw out “the previous question rule” to end debate because it was redundant. Burr naively argued that gentlemen of the senate would never abuse speaking privileges.The word filibuster comes from a term used in the 18th century to describe pirates or plunderers and since the 19th century the term has been used to describe actions that obstructed progress in legislative assemblies. Indeed, the modern use of the filibuster has a sordid history of being used to obstruct legislation, most notably efforts to protect civil rights.
Filibusters used to mean talking a bill to death so that a vote could not be held; today once 41 senators simply threaten to filibuster they can effectively prevent a vote since cloture—closing off debate—requires 60 votes, not a simple majority. This can literally result in a “tyranny of the minority” preventing serious and needed legislation from seeing the light of day. The filibuster tends to discourage serious negotiation and prevent compromise, both essential ingredients of parliamentary success.
Both parties have used the filibuster to their advantage and both have altered it to further their objectives. Harry Reid, while Senate majority leader, changed the rules in 1958 so that lower court and cabinet appointments only needed a simple majority instead of 60 votes. Mitch McConnell, as Senate majority leader, did the same thing in 2017 to put Neil Gorsuch on the Supreme Court. It just might be time to eliminate the filibuster altogether and go back to a simple majority vote in the Senate for legislation and appointments.