The Washington PostDemocracy Dies in Darkness

Opinion How Schumer and McConnell can work together to reform the filibuster

Senate Minority Leader Mitch McConnell (R-Ky.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) speak at the U.S. Capitol in November. (Jabin Botsford/The Washington Post)

This column has been updated.

Democratic efforts to end the Senate filibuster are thankfully going nowhere. But that doesn’t mean both parties shouldn’t work to curtail the most egregious use of that tactic — the purely partisan filibuster.

We’ve become so used to the minority party using the filibuster to obstruct the majority that we’ve forgotten this is relatively new behavior. For most of our nation’s 200-plus years, Senate minorities did not regularly use their power to engage in endless debate to frustrate the majority. Senate majorities could pass their agendas even in closely contested chambers.

This changed in the past two decades as politics has polarized. Both parties have used their minorities to block any bill they deemed unacceptable. The result is gridlock except for matters that can be passed in reconciliation bills, which are limited to purely fiscal matters.

As such, neither party can pass its priorities without the other’s consent. The nation’s immigration crisis, for example, goes unaddressed. Republicans won’t be able to reform Section 230 of the Communications Decency Act if they gain power, and Democrats can’t pass their wide-ranging election law measures. Each party feels this more keenly when they are in the majority, but the partisan use of the filibuster keeps the country’s public policies locked in amber.

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This has two consequences: First, it encourages the executive branch to expand its regulatory power to address items that legislators cannot pass. The arguments and lawsuits over the immigration executive orders from the Obama and Trump administrations are just one example of how a policy dispute that should be settled by the people’s elected representatives is now being waged in less democratically accountable branches. This weakens representative government and moves to a regime where bureaucrats and judges have more power than members of Congress.

Second, it discourages genuine bipartisan dealmaking. Breaking a filibuster requires 60 votes, and that means a majority party needs significant support from the minority to pass something. The sheer challenge of reaching that consensus discourages cooperation and discussion; it’s more politically advantageous to play to one’s base and decry the other party’s obstructionism. The only significant items that seem to pass on a bipartisan basis these days are those in which both sides can pile their spending wishes together in omnibus bills. Anything that requires genuine compromise or sacrifice is shunted aside as too difficult.

This never-ending inaction is fatal for a democracy. Alexander Hamilton explained in Federalist Paper 22 that “unanimity in public bodies,” or something close to it, would “destroy the energy of the government.” In extreme cases, it means that a minority captured by a corrupt foreign power can weaken the nation’s defense in cases of war. In less extreme cases, it means that things that should be done are not, and those things that are done are weakened to what everyone can agree upon. Sound familiar?

Senate leaders Charles E. Schumer (D-N.Y.) and Mitch McConnell (R-Ky.) should end this downward spiral with a bipartisan compromise to significantly weaken the partisan filibuster. They could, for example, agree to amend the Senate rules to require the filibuster to be bipartisan, perhaps by requiring three members of the party that makes up a majority to take part in it. They could also further amend the rules to provide that any reform will not go into effect until after senators take office in 2028. This would ensures that neither side will know which party would be able to take advantage of the new procedures when they come into effect.

Such reforms, once implemented, would change incentives in the Senate. Minorities will have a reason to negotiate with open-minded members of the majority, as they will require at least some of their backing to have any influence at all. Those members also have a club to wield within their own parties, as they can threaten to join the other side and hold up anything if they aren’t listened to.

That may not change things in the current 50-50 Senate, where Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) are already holding out on Democratic priorities regardless of filibuster rules, but it would be important in a Senate with a larger majority. A party with 55 votes, for example, would have to ensure that three of its own members don’t break ranks to join with the other side. This empowers the center at the expense of the extremes in both parties, which could help calm the country’s political fever.

Republicans may be wary of this, but they should remember that it takes 60 votes to break a Senate filibuster. The GOP has not held 60 Senate seats after an election since the passage of the 17th Amendment in 1913. Maybe they can break their century-plus schneid, but maybe not. Better to take a risk now for the possibility of passing a transformative agenda in the future.

The Senate has moved from being the world’s greatest deliberative body to its most obstructive. Time to restore the Senate to its greatness and end the purely partisan filibuster.

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