Recently, Majority Leader Chuck Schumer and Minority Leader Mitch McConnell have been bickering over an organizing resolution for the Senate. McConnell, a Republican, wanted Democrats to commit to preserving the legislative filibuster as part of any agreement. Democrats refused.
Eventually, centrist Democrats Joe Manchin and Kyrsten Sinema came out against eliminating the filibuster. Democrats — and independents that caucus with Democrats — only hold 50 of the 100 Senate seats; eliminating the filibuster would require the support of all 50, as well as Vice President Kamala Harris. With the assurances given by Manchin and Sinema, McConnell has dropped his demand that the preservation of the filibuster be a part of the Senate organizing resolution. For now, it seems that the filibuster will live on.
According to McConnell, the filibuster’s 60-vote threshold is “a feature, not a bug,” as it ensures “that slim majorities can’t ram through half-baked ideas.” This is not true. Even without the filibuster, it would still be very arduous to ram anything through the U.S. government, thanks to the Constitution’s robust separation of powers.
First, a bill must have support in both halves of Congress. This is already a huge hurdle, and frequently contributes to legislative gridlock. Proponents of bicameralism would likely point out that having two legislative chambers can be beneficial, as it can help to prevent the passage of what James Madison would refer to as “improper acts of legislation.” However, there are plenty of democracies around the world that only have one chamber to their legislature — for example, Denmark, Finland, Iceland, Luxembourg, New Zealand and Norway.
Second, if a bill survives both halves of Congress, the president can veto it, which can only be overridden by a two-thirds vote in both the Senate and the House. In many democracies, there is no equivalent to the presidential veto; in others, presidential vetoes are much weaker. In France and Italy, for instance, a mere majority is required to override a presidential veto. Similarly, many state legislatures can override vetoes by their governor with a simple majority.
Third, if a bill somehow gets past Congress and the president, the law can still be ruled unconstitutional by the Supreme Court. Notably, not all democracies empower their highest court with the ability to declare laws unconstitutional; the constitution of the Netherlands, for instance, explicitly prohibits this. In Switzerland, the highest court can strike down laws passed by the cantons, which are akin to U.S. states, but not federal legislation.
Some conservatives clamor that protecting the filibuster is akin to protecting democracy itself. This is false. The filibuster is not in the U.S. Constitution, and it only became part of the Senate’s rules because of a mistake. Excluding the U.S., the use of a filibuster is not a common feature among democracies, and even in the U.S., most state legislatures don’t allow for state legislation to be filibustered.
As a result of a bicameral Congress, as a result of a strong presidential veto and as a result of a Supreme Court empowered with judicial review, passing, enacting and implementing new legislation is preposterously difficult, and perhaps rightfully so. Once you add in the filibuster, however, it becomes far too easy for a small vocal minority to prevent progress demanded by a wide majority.
Abolishing the filibuster would not precipitate the end of American democracy because the U.S. system already has so many other redundant checks and balances. For comparison, note that none of the other democracies mentioned in this article have as many legislative roadblocks as the U.S., yet the events surrounding the recent presidential election demonstrate that among its peers, it is America’s democracy that is arguably most frail.
Joshua Holzer is an assistant professor of political science at Westminster College and a resident of Columbia.