'The public business must go forward': Why the Founders would have hated filibusters.

The Senate filibuster is an accident of history that deserves our contempt, not our protection. 

The filibuster emerged as an unintended byproduct of a rule change in 1806. At the Constitutional Convention, the founders certainly never imagined requiring a supermajority of 60 votes to pass legislation. One of the chief defects of the Articles of Confederation, according to critics at the time, was precisely the requirement of a supermajority to enact anything of significance.

In Federalist #22, Alexander Hamilton cited this as one of the major improvements in the new Constitution for the simple reason that “the public business must, in some way or other, go forward.” He warned that, if minorities were allowed to over-rule majorities, it would result in “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” 

And that was if a compromise could even be achieved. In other cases, the legislative body would simply be “kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy” – an apt description of today’s Senate.

Even infrastructure is a heavy lift

The rules around the filibuster have also repeatedly changed. For example, senators used to have to actually hold the floor if they wanted to filibuster. Now they only need to notify the Senate leadership of their intention to filibuster. The number of votes required to end a filibuster has also been revised over the years.

Democratic Sens. Kyrsten Sinema and Joe Manchin have argued against eliminating the filibuster because, they say, it encourages moderation and bipartisanship. And they can point to the recent agreement on infrastructure spending as an example (assuming it doesn’t fall apart in the coming days).

But that agreement shows how low the bar now is for bipartisan compromise. Getting enough votes for something as uncontroversial as infrastructure spending (a policy that President Donald Trump also supported) has proven extremely difficult, which shows the virtual impossibility of tackling hot-button issues, such as immigration or voting reform.

Rep. Val Demings: Voters didn't elect us to do nothing and blame the Senate filibuster. Get rid of it.

The filibuster has created so much gridlock that both parties already make use of various methods to get around it. The most common tool is budget reconciliation, which only requires a simple majority to pass legislation as long as it is related to spending and revenue. Instead of crafting the best legislation possible, senators craft legislation that can be shoe-horned into a budget reconciliation measure, which leads to exactly the kind of “compromises of the public good” Hamilton warned about.

Most crucial job requires only 51 votes

The Senate has also eliminated the filibuster for what is arguably its most important task – confirming Supreme Court justices. Once a justice is confirmed by a simple majority vote, he or she can hold the seat for life. By contrast, new legislation can easily be revised or repealed, but because of the filibuster, it frequently requires 60 votes to pass.

Justice Amy Coney Barrett was confirmed with 52 votes in the Senate. She is not yet 50 and will likely be shaping the fabric of national life through her opinions for a quarter of a century or more. The Affordable Care Act, meanwhile, was passed with 60 votes. Despite that, it has had to survive several Supreme Court decisions (including one that significantly narrowed its scope) as well as repeated Republican attempts to repeal it.

And the Senate still has an anti-majoritarian slant even when only 51 votes are required. Because small states receive the same representation as large states, a minority of the population can block the will of the majority.

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So, why do so many senators cling so tenaciously to the filibuster? I believe they are trapped by a misguided reverence for their own traditions. Thomas Jefferson warned about this when he saw how many of his countrymen were beginning to look on the Constitution “with sanctimonious reverence,” viewing it “like the ark of the covenant, too sacred to be touched.” In contrast, Jefferson envisioned a changing Constitution in response to “the progress of the human mind. As that becomes… more enlightened,… institutions must advance.”

Senators should heed Jefferson’s warning and not be trapped by their own sanctimonious reverence for a rule that is an accident of history. The founders explicitly rejected the idea of requiring supermajorities to pass legislation, and we should do the same.

Andrew Trees is the author of "The Founding Fathers and the Politics of Character."