Ornstein: Five Filibuster Myths

Senate Majority Leader Chuck Schumer has thrown down the gauntlet, saying he will move to change Senate rules by Jan. 17 if Republicans continue to block the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Because of the filibuster, neither can be enacted without 60 votes in the Senate — and no Republican backs both bills, though all 50 Democrats do. Supporters of the status quo have their reasons, many of them caught up in myths about the history of the Constitution and the Senate’s role.

Myth No. 1

Senate bills have always needed a supermajority.

People often overestimate the depth of the filibuster’s roots. When the Senate voted in 2013 to invoke the “nuclear option” to approve presidential nominees, then-Sen. Lamar Alexander (R-Tenn.) wrote in The Washington Post that sidestepping the filibuster was “the most dangerous restructuring of Senate rules since Thomas Jefferson wrote them.” More recently, Sen. Joe Manchin (D-W.Va.) defended the filibuster in the Charleston Gazette-Mail by saying, “Our founders were wise to see the temptation of absolute power and built in specific checks and balances to force compromise that serves to preserve our fragile democracy.”

True — but the filibuster was not one of these checks and balances. The Senate did not have any provision for a supermajority on legislation for its first 17 years. Like the House, its rules allowed a “motion for the previous question,” where a majority could move directly to vote. That provision was taken out in 1806, when Vice President Aaron Burr cleaned up what he regarded as extraneous provisions in the Senate’s cluttered rule book. For decades after the change, the status quo largely prevailed — until the 1840s, when John C. Calhoun exploited the motion’s absence to stall anti-slavery action by talking at length on the floor, joined by allies. His adversaries had no ability to stop the talk. From the 20th century on, the rules changed multiple times, always to make it easier for the majority to overcome a filibuster and move to action.

Myth No. 2

The framers feared 'the tyranny of the majority.'

Filibuster proponents often argue that the Constitution’s framers intended to obstruct decisions by simple majorities. In defense of the filibuster, Lewis & Clark Law School professor James Huffman wrote in the Hill that James Madison “would likely think it a brilliant innovation for preventing majority tyranny.” Senate Republican leader Mitch McConnell (Ky.) wrote in the New York Times in 2019 that the filibuster is “central to the order the Constitution sets forth,” citing Madison’s view that the Senate ought to function as an “additional impediment” and a “complicated check” on the House.

But other than the explicit constitutional requirements for supermajorities, such as to approve treaties, the framers were foursquare for majority votes.