Republicans and Democrats both have played Stealth Filibuster, a game in which the party with the fewest votes gets its way. Never mind if voters did not choose the minority party to lead. The rules and practices of the Senate have made bully tactics a right of membership.
The filibuster threat can halt progress on legislation that the House already passed, Senate committees have marked up and a majority of senators favor. Worse, given the “stealth” nature of many filibuster threats, voters cannot punish a senator for stopping popular legislation. Quite the opposite. Senators can quietly block legislation and later scapegoat the majority for failing to enact it.
Defenders of the filibuster claim that by giving the minority leverage, the threat of a filibuster encourages bipartisan compromise. That argument works if the minority party wants to negotiate and legislate. In the polarized politics of the 21st century, senators threaten filibusters merely to keep the other party from accomplishments, or to gain leverage for a pet project. The filibuster contributes to gridlock and reduces accountability, which in turn weakens the electorate’s respect for democratic institutions.
Democracy’s founding assumption is that competitors for power accept electoral losses and respect the winners’ right to govern. An opposition loyal to democratic principles is one that uses its votes and voice to scrutinize, criticize, persuade and bargain, but not to veto decisions made by the elected majority.
Still, senators are reluctant to lose the exquisitely useful filibuster tool. Senate Minority Leader Mitch McConnell promises that without it, polarization and gridlock would worsen. The so-called talking filibuster might rebalance the costs and rewards of obstruction; but should we revive the absurdity of lawmakers camped out on cots while someone commandeers the Senate floor through the night? Besides, the Senate abandoned talking filibusters for good reasons: They wasted scarce time and disrupted other chamber business.
A comparative study of democratic institutions suggests another way: Reward constructive opposition. This was Germany’s solution when it wrote a new constitution in 1949. During the Weimar Republic, parliamentary minorities obstructed the legislative process with impunity. After a decade of gridlock, Germans lost confidence in the established parties and threw their support to Hitler, who quickly consolidated a mix of nationalist populism and brutal repression. Learning from those experiences, Germany created strong checks on majoritarianism but also rules to ensure the elected government could function.
Among the key innovations was the “constructive vote of no confidence.” To remove the government, critics had to propose an alternative, so that a vote of no confidence was simultaneously a vote for the alternative chancellor. Germany’s innovation improved stability, with only one government since 1949 removed by a no-confidence vote, and it diminished the capacity of smaller parties to block parties with more electoral support.
Of course, there are significant differences between the U.S. and German democratic systems. The U.S. doesn’t have confidence votes, constructive or otherwise, and proportional representation and coalitional parliamentarism structure German parties’ strategies and tactics in unique ways. Nevertheless, we can use the core principle of a constructive no-confidence process to rethink the Senate’s self-imposed gridlock.
To maintain the filibuster but make it constructive, the Senate needs to change the incentives for negotiation and the costs of obstruction. If 41 senators want to continue “debate,” they should produce a substitute bill capable of passage. Require them to construct, in a set time frame, a germane alternative that at least 51 senators support. If they fail, then the Senate would reconsider cloture on the committee-reported legislation, but this time, a simple majority should suffice to end debate and move forward with the bill.
This is just a sketch of how a constructive process might work. Surely, 100 people with some 2,000 years of legislative experience among them can figure out the details. If they cannot put aside partisan interest to create a process that better serves the public interest, then an even-numbered, bipartisan commission of former senators should be appointed to do so, devising (in Rawlsian veil-of-ignorance fashion) a process that senators would consider fair, whether they find themselves in the majority or the minority.
But most importantly, it is past time that senators think less about their prerogatives and more about making their chamber more representative of and accountable to the American electorate.
Nancy Powers is a political science professor at Kenyon College in Gambier, Ohio, and assistant director of its Center for the Study of American Democracy.