Does the Filibuster Protect Minority Rights?

A common argument from filibuster defenders is that the filibuster is a necessary procedure to protect “minority rights” in the Senate. Without the filibuster, the Senate would be just another majoritarian body, no different from the House. The filibuster thus preserves the Senate’s particular solicitude for the interests of the minority.

I’ve always found this a curious position because the filibuster does not, in and of itself, provide any particular procedural guarantees, so it is unclear what precise parliamentary rights are being protected. The most potent procedural right a minority has in a legislative assembly is the right to cause a vote on something that perhaps the majority doesn’t want to vote on. This could be in the area of agenda-setting (i.e. suggesting that, instead of the majority’s bill, a different bill should be prioritized) or consideration (i.e. instead of the bill in the form that majority would prefer, the bill should be amended in various ways). There is zero connection between the filibuster and either of these procedural rights. Procedurally, you cannot get a vote on your amendment or your bill just by engaging in a filibuster.

The best argument is that a talking filibuster preserves the minority’s right to speak – to debate, to deliberate, to have their (literal) voice heard. This does appear to be a good justification for some form of filibuster, as a way to guarantee that the majority cannot rush through legislation without having to hear opponents of the bill give their arguments for why the bill should not pass. But even with this justification in mind, we must ask ourselves: does the minority’s right to debate extend all the way to a right to unlimited debate?

At one end of the spectrum, we have a ruthless majoritarian system where the majority moves to end debate immediately, without giving the minority sufficient (or perhaps any) opportunity to make their case against the bill. At the other end of the spectrum, I’d argue we have a ruthless minoritarian system, where the majority is unable to end debate at all and the minority is able to defeat the bill not by persuasive arguments but by running out the clock. If we are interested in the minority’s right to speak (and not the minority’s “right” to defeat legislation), then surely we must look for a parliamentary mechanism that gets us somewhere in between these two extremes. The minority has a right to “sufficient” debate (however that might be defined), but it does not have a right to unlimited debate, any more than the majority has a right to prevent all debate.

And while the abstract case may be interesting, we must also acknowledge that it does not reflect reality. The filibuster as currently practiced operates as a simple minority veto – a cloture vote that can succeed only with the concurrence of the minority. Senators just don’t talk anymore. Thus, the whole notion that the filibuster protects the right of Senators to speak is (in actual practice) entirely illusory. If “debate” is the basis for your defense of the filibuster, at minimum you must insist on a return to actual talking filibusters.

Procedural Hostage-Taking

The rejoinder to these points is typically to assert that the filibuster’s utility lies not in its procedural niceties per se but in its political effect. The minority can in fact get sufficient debate time and votes on their amendments by using the filibuster – if they’re willing to engage in a bit of legislative hostage-taking. The trade is as follows: the minority agrees to refrain from filibustering the bill if the majority is willing to give them sufficient debate time and votes on their amendments. Thus, the procedural rights of the minority are protected via the mere threat of using the filibuster.

Again, I find this move less than convincing because it presents such an unrealistic view of how these negotiations work. However the filibuster may have been used in the past, it is currently exercised as a simple minority veto, and as a result, the minority holds all the cards in these negotiations. They might, I suppose, pursue a very noble and generous path and demand only that the majority bring up its bill under procedures that the let the minority debate it and offer amendments to it – acknowledging the possibility that the speeches will fall on deaf ears and that the majority will simply vote down all of their amendments.

But why accept this fate? The minority holds a veto – if they don’t vote in favor of cloture, the bill is dead. Why facilitate the passage of a bill you oppose when you have the power to defeat it? The veto allows you to demand more than mere procedural rights. It allows you to demand concrete changes to the bill. It allows you to not only have a vote on your amendment, but to have that amendment incorporated into the bill. Indeed, the filibuster gives you the power to demand that all of your amendments be incorporated into the bill. Either the bill passes in a form acceptable to the minority, or it doesn’t pass at all.

Substance vs. Procedure

At this stage, filibuster proponents often simply give up the pretense that they are interested in minority procedural rights at all, and shift to a different argument: that the minority has a right to see its ideas enacted into law. Thus, the filibuster is not really a mechanism for ensuring that the parliamentary rights of the minority are protected. Rather, it is a mechanism for ensuring that no bill can pass unless it is a bipartisan compromise text containing both ideas favored by the majority and ideas favored by the minority. The filibuster is not about procedure; it is about substance.

As a response, I’d start by pointing out that the two positions (procedural protections vs substantive outcomes) are in tension with one another, so filibuster defenders should really choose between one or the other. If what matters is procedural rights (to debate and offer amendments), then a partisan bill that succeeds in getting through the gauntlet of minority speeches and amendments is as a good as a bipartisan bill where many minority amendments made it into the final text. But if what matters is that the bills all be bipartisan compromises, then any procedure that will get you there (even one with no debate and zero amendment opportunities) is acceptable.

(As a small digression, I’ll just note that when the filibuster “works” these days, and the Senate does agree to a bipartisan compromise deal, it typically does so with none of the procedural guarantees for minority rights that filibuster supporters claim are important. Instead, the leaderships of the two parties (or perhaps a “gang”) will go off in secret, draft legislative text in secret, come to an agreement on that text in secret, and bring that text to the floor for a little parliamentary charade. Debate time will be strictly constrained and the bill subject to perhaps a few “destined to fail” amendments that no one finds particularly controversial. In short, once a bipartisan supermajority is formed, procedural rights for all Senators essentially vanish and the bill goes through far quicker than even in the majoritarian House.)

I feel that filibuster supporters are on firmer ground when they are arguing for procedural rights, because the filibuster is fundamentally a procedural mechanism. And procedural mechanisms cannot and should not be used as a method of ensuring particular substantive outcomes. The point of a parliamentary body is to debate and deliberate – to discuss ideas, vote on them, and in the process craft legislative text. Procedural rules should be geared towards facilitating that process, not preventing the passage of bills that do not have a specific substantive character.

But even accepting the argument that substantive outcomes are more important that procedural nuances (parliamentary rights of the membership be damned), I think one has to acknowledge the filibuster’s deficiencies in actually providing those substantive outcomes. As noted, a minority veto allows the minority to demand anything it wants. The majority has no recourse but to accept the minority’s demands – it’s either the bill as the minority would like it, or no bill at all. We can certainly imagine a very noble and generous minority that demands only that the majority’s highly partisan bill be replaced with a broadly-acceptable bipartisan compromise where everyone gets half a loaf. But we can also imagine a more realistic scenario where the minority demands complete surrender, the majority rejects the outlandish demand, and the bill goes nowhere. And, as the output of the Senate for the last 20ish years demonstrates, this is precisely what occurs. If the filibuster were an effective mechanism for ensuring bipartisan compromise bills, then we would see a starkly different record of Senate productivity.¹

The reason for this failure is the hopefully self-evident notion that you cannot force people to compromise through procedural mechanisms alone. You cannot really even incentivize or encourage it. In a majoritarian system, the majority arguably has no incentive to compromise because it has the votes to defeat anything the minority offers (and, conversely, the minority is incentivized to compromise for precisely the same reason). The filibuster “solves” this problem by giving the minority a veto. Now the majority is incentivized to compromise, because otherwise the minority will veto its bill. But observe how this parliamentary whack-a-mole has played out: now the minority has no incentivize to compromise because it has the votes to defeat anything the majority offers. We’re back to square one.

In fact, I’d argue we’re back to square zero because, as Speaker Reed famously pointed out, the tyranny of the minority is worse than the tyranny of the majority. A majority that defeats every minority amendment and passes partisan legislation without any minority ideas at least has an electoral mandate to do so. If the public wanted more minority party ideas enacted into law, they would vote to make that party the majority instead. They didn’t, so it’s the actual majority party whose ideas get enacted into law. The minority party’s ideas have no similar claim to electoral sanction.

Furthermore, a majoritarian system has the not insignificant advantage of actually producing outcomes. Under the Senate’s tyranny of the minority, the filibuster attempts to force the two sides to compromise by essentially telling them, “Either you come to an agreement, or nothing will get done!” This threat may work, but it may not. If Senators prefer the status quo over any change, there is absolutely no reason to accept a compromise. Or Senators may simply prefer that nothing gets done if the alternative is a lot of hard work and tough votes. And the record clearly indicates that Senators more often choose “nothing” over “something”.

Denial and Deflection

So if the filibuster is not about protecting minority rights and is woefully deficient in producing the substantive compromises that we’ve now deemed even more important, what is it about? Typically, filibuster supporters at this juncture give up on the idea that rules and procedures and parliamentary rights have much of an impact on anything. What really matters is that the Senators themselves be willing to compromise. Without this prerequisite, nothing is possible and the system of rules that these Senators operate in is basically irrelevant. This is the “It’s not the rules, it’s the Senators” position.

At this point we’re about as far away from procedure as we can get. We’re tiptoeing up to the strange inverted world of, “Government in the Senate is unnecessary as long as we simply elect angels”. The only phase after this is to decry democracy itself. For who it is that’s electing all these stubborn, uncompromising Senators? It’s those dumb voters! Not much point debating the niceties of congressional rulemaking when it turns out representative democracy doesn’t actually work.

The other equally-unsatisfying move is to claim that the dysfunction and lack of productivity we see in the Senate is actually evidence that the filibuster is working as intended. Senators are bound to disagree, and the procedural rules of the Senate should, if anything, exacerbate these disagreements in order to make it extremely difficult for the Senate to agree on anything. We need the highest thresholds for agreement because the Founders thought that government was dangerous, so the more procedural roadblocks you can erect in the Senate, the better. Dysfunction is not a bug, it’s a feature.

My only response to this is to say that the Founders were not idiots. They didn’t bequeath us a car with no wheels because they didn’t think we’d be responsible enough to drive. They envisioned a functioning system, where governmental powers are exercised responsibly. They did not design a purposefully dysfunctional system, where governmental power cannot be exercised. I take it as a self-evident truth that the Senate should have good parliamentary rules that make good outcomes more likely. I’m not much interested in juvenile theories of why we need bad rules and bad outcomes.

An Alternative Approach: Open Rules

There is a procedure in the House known as an “open rule” that presents an interesting contrast with the filibuster because it would seem to actually provide all the benefits that the filibuster only pretends to.

Under an open rule, a bill is brought to the floor for what is essentially a committee markup – a section-by-section reading of the bill from start to finish, with Members permitted to offer amendments to each section as it is read. Amendments are typically debated for ten minutes each (5 for the proponent, 5 for an opponent), and after the reading is complete, the House moves to a final vote on the bill.

As should be evident even from this cursory description, an open rule is very effective at actually preserving minority rights in the House. The minority is permitted to offer whatever amendments it wants, to any part of the bill. There is no limit to the number of amendments that can be offered. Although theoretically debate on each amendment is short and constrained, the House authorizes “pro forma” amendments (fake amendments proposing a notional change, such as “striking the last word”) by which any Member can speak on any amendment for 5 minutes. With no limit on the number of amendments (and the ability to offer second-degree amendments as well), debate can extend indefinitely.

An open rule is superior to the filibuster in preserving parliamentary rights because the procedure itself is directly connected to those rights. The open rule itself provides the mechanism by which the bill is read for amendment. The open rule itself provides the debate time and the amendment opportunities. It doesn’t rely on hostage-taking or other political mechanisms designed to “force” the Members to agree to a thorough and deliberative process. It simply states, “For this bill, there will be the following thorough and deliberative process.” Easy as that.

Critics point out two fundamental problems with open rules, each of which points in a different dysfunctional direction. The first is the problem (ironically?) of filibustering. With no limit on the number of amendments, and (with pro forma amendments available) no limit on debate time, the bill’s opponents could theoretically drag out the proceedings indefinitely. The minority could offer hundreds upon hundreds of bad faith amendments, poison pills, “gotcha” amendments, and other unserious proposals, designed not to improve the bill or bring it closer to a point where the minority could support it, but simply to wear down the majority. The minority could offer a thousand pro forma amendments, not in order to persuade the majority of the bill’s flaws but simply to waste time and obstruct. The majority may eventually consider it a better use of time to simply give up on that bill and move on to something else.

The second problem is the inverse of the first, because even under an open rule, the majority does have procedural tools to close debate. The motion to close debate is essentially a majority-vote cloture motion that can be applied to any amendment or the bill itself. Aggressive use of this motion could be used to silence the minority and cut off amendment opportunities.² And although we can debate the extent to which substantive outcomes should concern us, an open rule is ultimately majoritarian. Even if the majority allows full and unfettered debate, it has the numbers to simply vote down every minority amendment and pass a partisan bill with zero minority party ideas. Again, I would question whether this is in fact a problem or simply how things ought to be in a representative democracy, but it is absolutely true that nothing prevents partisan legislation under open rules.

So in one sense an open rule is both too majoritarian (the majority party can attempt to restrict debate and force through a partisan outcome) and too prone to abuse by the minority (the minority party can drag things out with either speeches or amendments or both). But therein lies the genius of the open rule: the two flaws operate against one another to produce precisely the circumstances for bargaining and compromise that filibuster supporters say they want.

The key fact about an open rule is that it lets the trajectory for each bill play out organically. Neither side knows in advance how the other will play its cards. Is this a bill that the minority strongly opposes and will therefore expend great energy trying to defeat? Is it a bill that the majority wants to shield from scrutiny and “uncomfortable” votes, and will it therefore aggressively try to curtail debate? The answers to these questions will depend greatly on the circumstances. Different types of bills will engender different responses.

Unlike the filibuster, an open rule actually does measure the intensity of Members’ feelings towards the bill at issue. As currently practiced, the filibuster/cloture mechanism is effortless on both sides: filing cloture is essentially a bit of paperwork for the majority, and defeating a cloture vote is just a matter of voting “nay”. A bill coming up under a open rule, however, is a different story entirely. For the minority to defeat it via obstruction and dilatory tactics alone, they would have to draft countless amendments, be on the floor at the appropriate time to offer them, spend time to debate them, etc. With 200+ Members in your caucus, such filibustering may not be particularly grueling on any one Member, but it nevertheless take energy and diligence and coordination to see it through. To make that same effort on every single bill, day in and day out, is simply beyond the ability of any minority party. They would have to choose their battles.

On the flipside, the majority party cannot be too heavy-handed in its treatment of the minority under a regime of open rules, because there are so many opportunities for dilatory action. The majority will, of course, be on the lookout for any method to speed up the deliberations and move to final votes quicker. But the tighter they restrict the minority and cut it out of the process (i.e. moving to close debate too early), the more the minority will protest by dragging things out further – if not on this bill, then perhaps the next one.³ There will always be a see-saw battle, with each side putting maximum effort into the areas they feels strongest about, and letting the other side achieve partial victories in areas that matter less.

Which is precisely the scenario that filibuster defenders say is essential for creating the conditions for negotiation and compromise. The minority knows that it doesn’t have the numbers to defeat the bill; they can only slow it down – if they make the effort. The majority knows that it can’t push a purely partisan bill through – unless they are willing to make the effort to withstand the minority’s obstruction. The potential for dealmaking arises naturally from such observations. If the minority refrains from all-out legislative guerilla war, it can perhaps persuade the majority to agree to a compromise version of the bill instead of a partisan one. And if the majority agrees to incorporate some the minority’s ideas into the bill, it can perhaps get the minority to back down from its filibustering threats and smooth the way to final passage.

If you make maximalists tactics costly for both sides, the road to a middle-ground compromise becomes the path of least resistance.

Conclusions

Filibuster defenders aren’t wrong about what we should value in a legislative assembly. A robust deliberative process is important. The rights of the minority are worth protecting. The majority should not be allowed to ram through partisan legislation without sufficient debate. And, all things being equal, bills that pass with large bipartisan majorities are probably preferable to partisan bills that squeak through with a bare majority. But they are wrong in thinking that the filibuster is helpful in advancing any of these values.

Instead, the filibuster as currently practiced prevents a robust deliberative process. Bills die because the motion to proceed to their consideration fails. The filibuster does not protect the minority’s right to speak or to amend – it has no connection to the latter, and Senators can and do voluntarily choose not to exercise their rights to the former. When bipartisan deals are forged, parliamentary rights of the body are jettisoned in favor of quick votes. If the filibuster ensured or even just encouraged wide-ranging debate and minority participation in the process, we would see a very active Senate floor and a string of bipartisan success stories. Instead we see exactly the opposite: a moribund chamber where no real legislating occurs.

Open rules provide an instructive lesson on how procedural rules could be used effectively to achieve the goals that the filibuster’s proponents claim are important. They do so by guaranteeing procedural rights, rather than leaving such rights to be negotiated by the parties. They do not try to “force” compromise by giving all sides parliamentary nuclear weapons and feebly hoping that some sense of mutually-assured destruction will avoid catastrophe. Open rules don’t rely on procedural hostage-taking or other gimmicks. They provide an open, transparent forum for Members to debate their ideas and vote on them. And that, fundamentally, is what we should all want from Congress.

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1. People sometimes point to the Senate’s record of passing bipartisan omnibus appropriations packages as evidence that the filibuster works, but there is no evidence for this. When the Senate finds itself up against a fiscal deadline, with shutdowns or defaults looming, then compromises do tend to get worked out, but only because both sides in such circumstances are incentivized to make a deal. The minority cannot filibuster because it will be blamed for the consequences, and the majority cannot be too heavy-handed because it will be blamed for not governing responsibly. Crucially, it is not the filibuster that provides the impetus for bargaining – it is the tight deadline and the “must pass” nature of the legislation at issue. The existence of the filibuster plays no role in the passage of such bills. ↩︎
2. The motion to close debate in the Committee of the Whole may end debate, but it does not actually prevent the offering of further amendments to the bill. In its most extreme case, the majority could move to close debate on the bill right at the start of the process – leading to a debate-less vote-a-rama situation for any amendments the minority wishes to offer. ↩︎
3. An open rule also has the advantage of being transparent. Bills “die” in the Senate when the Senate fails to invoke cloture (and the minority is rightly blamed for “blocking” the bill), but this obfuscates the fact that the majority is attempting to ram through a bill without the minority’s input (usually by filling the amendment tree and filing cloture before there’s been a single word of debate). By contrast, motions to close debate under an open rule are quite obviously mechanisms to restrict the deliberative process. It thus becomes quickly apparent to any observer whether the majority is allowing debate to proceed naturally or cutting things off prematurely. ↩︎