The filibuster is in trouble. President Joe Biden has come out in favor of reforming it, and Democrats in the Senate are weighing alternatives. But the strongest sign that its days are numbered is that the Republican leader Mitch McConnell is threatening Armageddon if the other party touches it. No one presently—or perhaps ever—in the Senate has practiced the dark art of obstruction as relentlessly as the current minority leader. And the Kentucky senator’s most effective weapon, requiring 60 votes for virtually everything the opposing party wants to do, has been the filibuster. Democrats can propose legislation that voters strongly support—a higher minimum wage, a path to citizenship for Dreamers, background checks for gun purchasers, safeguards for Americans’ ability to cast ballots—and McConnell can strangle it off camera with a minimum of notice or fuss.
Like Lyndon B. Johnson, McConnell is a master of the Senate. But although Johnson often used his mastery to pass important bills, McConnell uses his to kill them—while simultaneously generating outrage that yields considerable benefits for his party. McConnell possesses a rare understanding of mass psychology and knows that the American political system is unusually opaque to voters. Not only does the United States have multiple branches and levels of government, but voters elect their representatives in Congress separately from the president (as opposed to parliamentary systems, such as Britain’s and Canada’s, in which the executive is the leader of the majority party or coalition). In this complex system, determining who has done what can be like figuring out a mystery novel. The filibuster, an arcane procedure that prevents those who seem to be in charge from actually passing the legislation they want, only deepens the mystery.
The upshot is that party accountability in the American system mostly centers on the president. Even in midterm elections, when the president isn’t on the ballot, dissatisfied voters tend to punish the president’s party at the polls. This has a certain logic: Figuring out who is president is easy. So is deciding whether you like what you think the president is doing. By contrast, a strikingly large share of voters struggle to identify their representatives in Congress, or even which party controls the House or the Senate. (In 2014, a midterm year, just 38 percent of Americans correctly said that Republicans controlled the House, and the same paltry share correctly said that Democrats controlled the Senate.) In this context, voters are unlikely to punish a minority party wielding the filibuster—and, indeed, are far more likely to punish a president and a president’s party for policy failures caused by the filibuster, even if it is wielded by the other party.
In theory, voters could punish those who filibuster, if they knew who they were and what they were blocking. Today, however, filibusters require little more than a declaration from minority leaders that they have 41 votes against a bill, and so the tactic can be deployed with abandon. Most of the legislation that fails because it has “only” majority support never gets close to the surface of public consciousness. And public understanding of the filibuster itself is weak, to put it diplomatically. A 2020 survey out of Washington University in St. Louis asked, “How many votes are required to end debate and get a vote on normal legislation in the U.S. Senate?” The most popular answer was “not sure” (32 percent); the next most popular was “51 votes” (26 percent)—in other words, majority rule. Just 15.5 percent said “60 votes.” And this was a multiple-choice question with limited options. The other possible answers were “67 votes,” “75 votes,” and “unanimous”—all of which attracted a good chunk of respondents. One wonders how many voters might have gotten it right had they been allowed to come up with their own answers.
Although the use of the filibuster has been increasing since the 1980s, McConnell, the Senate Republican leader since 2007, has perfected its deployment. In 2009, President Barack Obama came into office with an enviable level of public support, and he faced an economic crisis for which the other party was widely blamed. Confronted with unified Democratic control, McConnell did not encourage his party to compromise. Instead, he ramped up use of the filibuster to previously unseen levels. Everything that could be filibustered was—even routine and trivial matters, even bills and appointments that the Republicans ultimately planned to support. McConnell candidly explained his strategy in 2011:
We worked very hard to keep our fingerprints off of these proposals. Because we thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the “bipartisan” tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.
This quote is worth parsing. McConnell was saying that certain legislation Obama wanted to pass could have gotten bipartisan support, which Americans would have then seen as affirming its general goodness. But McConnell didn’t want that legislation to pass, or Americans to draw that conclusion. Fingerprints is the most revealing word. It makes clear that what mattered to him was that Obama would take the blame. For Republicans, the filibuster was a win-win-win: It sharply reduced the range of issues that Democrats could advance; it ensured that even bills that got through were subject to withering attacks for months, dragging down public support; and it produced an atmosphere of gridlock and dysfunction for which Democrats would pay the price.
In short, McConnell recognized that the modern filibuster introduced a serious flaw into the code of American democracy. Far from fostering compromise, the current filibuster has given a unified minority party every incentive to block legislation, no matter how many Americans support it. (In theory, a Senate faction representing about a tenth of Americans can maintain a filibuster under present-day rules.)
The intensifying cycle of political dysfunction has reinforced all of the other potent factors that have encouraged the Republican Party’s antidemocratic shift: a large and passionate base, ginned up by right-wing media and other outrage-stoking organizations and advantaged by the growing rural bias in American politics. The filibuster seeded the ground for an anti-Washington demagogue who claimed that he alone could get things done. And it has furthered the party’s turn toward resisting majorities—through voter suppression, gerrymandering, and an emboldened conservative Supreme Court—rather than persuading them.
The filibuster conveys a particular disadvantage upon Democrats, because they are the party that has big legislative ambitions. In recent years, Republicans’ primary forward-looking goal has been to pass tax cuts for corporations and the affluent, which can be pushed through using the filibuster-proof budget process. The party’s other big goal has been getting conservative judges onto the courts, and McConnell quickly eliminated the filibuster for Supreme Court confirmations in 2017 to ensure that it could.
That rule change makes clear that McConnell’s opposition to Democrats’ current proposals has nothing to do with promoting compromise or protecting the Senate’s norms. The reason Republicans like the legislative filibuster is because it stops Democrats from enacting popular elements of their agenda, feeds public discontent with the party ostensibly in charge, and fuels the anti-government extremism that now animates the GOP base. Faced with the prospect of having his best weapon taken away, McConnell has, in effect, admitted that his only real strategy is to hamstring the institution he supposedly venerates and then blame his opponents for the disarray. Democrats should call his bluff, and let voters know what they—and the Republicans—stand for.