Yes, I totally agree with you, this's all a problem. Or, perhaps, several problems put together. How to fix it is another question, but we can all agree with what you've stated today: it's a problem!
No! This is fascinating! I've never seen this before! I've certainly been into Congress.gov looking at failed proposals from time to time, but obviously this is much easier, especially for old ones. Handy!
It's remarkable to me that they've been filing "repeal the 17th" amendments for 90 years, but not once proposed a replacement.
I think there's an amendment proposal in that database that addresses the deadlock aspect; it's from the 1930s and of course requires the 17th amendment be repealed.
Ok, I can't find anything from the 1930s, but I did find this, proposed by Mark Levin:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1.
SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.
SECTION 4: Senator may be removed from office by a two-thirds vote of the state legislature.
Oh, I think it's bad - as you say, it'd restore all the old problems that led to the 17th Amendment! Which IMO would be at least as bad as the current problems.
I don't think it's *crazy* to think that the deadlocks problem could be resolved by a gubernatorial appointments fallback. I don't think it's true, but it is tempting in its simplicity, especially for constitutional text. (My idea is not simple.)
Regarding your footnote about Shields defeating Stonewall Jackson, worth noting is that there is some dispute about how much credit he should get for First Kernstown--while the plan was his, he was actually wounded the previous day by a shell fragment, and battlefield command went to Nathan Kimball.
Also of note is that the day of the battle, March 23, was a Sunday, and according to legend Jackson took the defeat as a sign from God and never again launched an attack on a Sunday afterwards. It's not really true, but it's a charming story.
Count me among those "pro-filibuster moderates." However, I think there are more than a "small handful" of such Republicans in the Senate. During his first term, Pres. Trump repeatedly called for the Senate Republican majority to end the legislative filibuster. He was repeatedly rebuffed.
Then-Senate Majority Leader McConnell gets the brunt of the blame (or praise) for this action, but the legislative filibuster was broadly supported by Republican members. And the legislative filibuster continues to have support. Just after the 2024 election, Senate Republicans (including some of Pres. Trump's allies) preemptively announced that they would not weaken the filibuster.
I do not see the current use of the filibuster as abusive. The filibuster effectively imposes a supermajority requirement to pass most major legislation. This is a good thing! Slim, temporary, and partisan majorities in Congress should not be able to radically overhaul our nation's laws. It is good that such consequential changes require broad, enduring, and bipartisan consensus.
I think the 1964 Civil Rights Act is a key example. You mention filibuster abuses during this period, and I am not well enough versed in the history to dispute you. Nonetheless, the Civil Rights Act ultimately passed the Senate with a 73-27 vote, comfortably above the two-thirds threshold for cloture required at the time. (The cloture vote itself was 71-29.)
While the Civil Rights Act was a highly contentious issue at the time, the issue has (more or less) been put to bed. To my knowledge, there have been no serious efforts to repeal the Civil Rights Act since its passage. Conversely, in a universe without the filibuster, a much different Civil Rights Act would have been passed, and I presume we would still be fighting about it today.
(I don't mean to imply that there is no dispute about the application of the Civil Rights Act itself. Notably, after 50 years of splits in the circuit courts, the Supreme Court recently had to step in to clarify that, yes, the protections of the Civil Rights Act apply the same to everyone equally.)
In this way, I see the filibuster as reducing political conflict, not raising it. Imagine if the fundamental character of our country's laws was determined every two years by a handful of House races in purple districts and Senate races in purple states. Note, this problem would be exacerbated by gelding the veto, as you suggest elsewhere. Decreasing the threshold for one party to exercise unilateral control increases the probability this happens.
Conversely, I do not think there is much value in the "cooling off" function. Suppose the Senate Democratic majority eliminated the filibuster at the start of Pres. Biden's term by lowering the threshold for cloture to a simple majority. I do not think the requisite 30 hours of "debate" would have dissuaded Senate Democrats from passing their key legislative priorities. Some examples:
• H.R. 1 (a hodgepodge of progressive priorities on "voting rights," campaign finance, etc.)
• H.R. 4 (federal takeover of elections)
• H.R. 5 (dramatic expansion of the scope of the Civil Rights Act)
• H.R. 6 (retroactive legalization of Pres. Obama's DACA program)
• H.R. 7 (criminalization of the "gender pay gap" as disparate-impact type discrimination)
• H.R. 51 (DC admitted as a state)
• H.R. 127 (federal licensing and public database of gun owners; bans ammo above .50 cal)
• H.R. 1522 (Puerto Rico admitted as a state)
• H.R. 1976 (socialized medicine vis a vis "Medicare for All")
Instead, Senate Democrats actually had to negotiate with Republicans on important issues. And it turns out, Republicans and Democrats were able to compromise on some controversial topics.
• No federal takeover of elections, but sensible reforms to the Electoral Count Act after Jan 6.
• No public database of gun owners, but some improvements to background checks, funding for mental health, funding for school safety, and guns taken away from domestic abusers.
• No inclusion of LGBT in the Civil Rights Act, but national recognition of same-sex marriages.
• No Green New Deal, but investment in U.S. infrastructure and semiconductor manufacturing.
Conversely, I think we see the negative consequences of the filibuster's absence in presidential appointments to the executive branch and the judiciary. Senate Democrats wanted to confirm radical appointments by Pres. Obama, Republicans were opposed, and Democrats nuked that part of the filibuster. As an exercise, come up with your five worst nominees confirmed during the Trump and Biden admins. Would they have gotten through a 60-vote cloture? Probably not.
I think we also see the negative consequences of the filibuster's absence in reconciliation bills, but this comment is already too long. I will leave it as a question to the reader whether they think it is positive or negative that one party can increase the deficit by trillions of dollars when, by luck of the election, that party happens to win the presidency and both chambers of Congress.
When people talk about eliminating the filibuster for some important purpose, I am reminded of the line you quoted from "A Man for All Seasons": "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?" Or as Sen. McConnell said, "You’ll regret this, and you may regret this a lot sooner than you think."
Finally, as a minor and unrelated point, Congressional Republicans have "conferences" not "caucuses." E.g., I would write, "Republicans are restrained only by the small handful of pro-filibuster moderates left in their conference." I presume this distinction once meant something.
Interestingly, I *did* come across a footnote while researching this that drew a 19th-century distinction between "caucuses" and "conferences." I haven't seen this elsewhere, and the context isn't quite the same so it could be wrong or I might be misunderstanding it, but:
> Formally, both parties’ “joint caucuses” met preceding the legislative balloting for Senate, to nominate the parties’ choices to fill the vacancy. A strong distinction was made between a caucus of party members and a conference. At a caucus, anyone in attendance was bound to abide by the majority vote of the caucus. Anyone not in attendance was not bound. Absences were noted by the leaders and by the press, which attended and reported the deliberations and the roll call vote(s) on the nomination. Anyone who absented himself from the caucus without “good cause” was considered an insurgent or a bolter. Because of the heavy implications of meeting in caucus, it was often difficult to call caucuses whenever joint convention balloting became protracted. Therefore, party leaders would often call conferences, which were allowed to take votes on whether to support particular candidates, but without binding participants.
(from "Party Control and Legislator Loyalty in Senate Elections Before the Adoption of the 17th Amendment" by Charles Stewart)
How this evolved into today's "conferences" and "caucuses" is beyond me (as you correctly point out, I'm sloppy about the modern distinction), but I thought it was interesting anyway.
The only thing I was particularly inclined to disagree with you about was the future prospects of the legislative filibuster in a future Republican senate. I had been under the impression that the filibuster hung together in, say, the 115th Congress because Sens. Murkowski, Collins, McCain, and Graham (a member of the Gang of 14, despite his recent reinvention) supported it; that 2 or 3 others quietly supported it (Thune, Cassidy, maybe Alexander? Romney later of course); that McConnell backed it both to keep from exposing divisions in his caucus and because he genuinely thought it was long-term beneficial; and that the rest of the caucus toed McConnell's line because McConnell had earned their trust (and he sure had; the GOP public never respected the way he richly deserved).
But then I realized that my theory of the case was based on vibes, not facts; that you are *much* better positioned to know the truth than I am; and that I will therefore defer to your view of the Senate Republican Conference!
As to the rest, I share your terror of a Democratic majority unloosed from the filibuster. Your parade of horribles largely lines up with my own from a few years ago: https://decivitate.jamesjheaney.com/p/midterms-anything-could-happen). I do think that the use of the filibuster is an abuse, because it perverts the purpose and meaning of "ongoing debate." On the other hand, I think there's a better-than-plausible case to be made that the current abuse of the filibuster is a necessary adaptation to the breakdown of the Senate and its growing polarization. A Senate that isn't a cooling saucer and which has lost the character of consensus-building needs a blunt consensus-forcing mechanism, or the United States collapses into the mad partisan fits of parliamentary democracy (sorry, readers from the Commonwealth!). The filibuster fills that role, at least for now.
On the other hand, I also think it's a tactical error, here in 2025, for the Republicans to continue to protect the filibuster. (It was a closer call when Joe Manchin and Krysten Sinema were still in the Senate, and, as you describe, the gamble of counting on them did pay off.)
I think it was demonstrably a tactical error for the Gang of 14 to make their deal in 2005: Democrats got to keep Miguel Estrada and block a variety of Bush judges, and what the GOP got in exchange was... really very little, because Reid blew up the deal and shoved through all his nuttiest noms as soon as it became even mildly inconvenient for him. (I fumed about this a dozen years ago here, and mocked the Gang of 14 rather unkindly: https://ropersanchor.jamesjheaney.com/2013/11/22/no-republicans-have-not-blocked-82-obama-nominees/ ) In principle, I'm inclined to support the filibuster for all the reasons you mention, at least in our current Senate. In practice, with one party bent on destroying it, I think the filibuster is dead and that the GOP should reap the rewards of destroying it and passing a bunch of legislation before the other side inevitably does it to us. We will regret doing this -- McConnell's warning is exactly right -- but I think we will regret even more *not* doing it.
At root, though, I think the filibuster is serving this role because the Senate is broken. If we fix the Senate at the source, I think... well, I hope... that we would find the filibuster simply wouldn't be an issue anymore. (I suppose I am tipping my hand here that my proposal in a couple of weeks will be oriented toward increasing the proportion of moderates in the Senate overall.)
Thanks for the thoughtful comment! Always a pleasure to hear from you.
Interesting point on caucuses v. conferences! Yes, it is also my vague understanding that the distinction originally concerned binding v. non-binding internal votes. However, I do not remember where I read that, and the House and Senate Democratic caucuses don't seem to use that function today, so I am left confused.
You make a fair point: My comment glosses over some of the internal conference divisions over the filibuster during the first Trump admin. Moreover, the level of support for the filibuster varied by member, and surely involved both principled and practical motivations. I agree that Leader McConnell was the keystone.
I'll just point out that Republican Sens. Collins, Hatch, McCain, Murkowski, Wicker, Graham, Strange, Burr, Moran, Blunt, Rubio, Boozman, Tillis, Capito, Thune, Cassidy, Flake, Heller, Grassley, Portman, Alexander, Kennedy, Cochran, Sasse, Young, Roberts, Isakson, and Lee all signed a bipartisan letter to preserve the filibuster.
That's 28 members by my count, and represents a lower bound for Republican support. I suspect that others also supported the filibuster but did not want to pick a public fight with Pres. Trump. While many of these members have left the Senate, I think recent experiences have convinced Republicans to keep the filibuster.
Is this a game-theoretically optimal strategy? Left as an exercise for the reader.
Concerning whether the current use of the filibuster abusive, I would be happy with a constitutional amendment that puts the supermajority requirement on the bill's final passage, rather than on ending debate. I'm OK with things coming to a vote.
Maybe I've read too much Jim Buchanan, but I think that supermajority requirements are beneficial to protect minority rights and interests. You could "fix" the Senate, and I think I'd still want a supermajority requirement. Mob rule by deliberative moderates is still mob rule. Maybe you'll convince me otherwise in the next installment!
Likewise, thanks for your thoughtful response. Always appreciate chatting!
I think making the U.S. Senate function like the German Bundesrat would fix the problems. James, have you looked at how the Bundesrat works? It seems to work well to present the voices of the different German states in the German parliament.
The "cooling saucer" story might not be real, but one that almost certainly is real is the description of the Senate of Canada as "ha[ving] the sober second-thought":
(What may be apocryphal about this is that Sir John A. Macdonald's use of the term "sober" was due to his being a notorious drunkard; he reportedly often showed up to the House completely sloshed, especially when in opposition in the mid-1870s when turfed out of power following the Pacific Scandal. Another possibly apocryphal tale is that Macdonald told Thomas D'Arcy McGee that since the Government could not have two drunkards, McGee would have to give up alcohol.)
While the Senate of Canada has near co-equal power with the House on paper (s. 53 of the Constitution Act, 1867 is one of the few limits), any attempt to actually exercise this power would result in popular demand for some sort of broad reform. Senators know full well that their role is to check the worst democratic excesses of the House, not to defeat legislation outright (this does not stop poison-pill amendments), and that stepping beyond this without very good reason will lead to calls for abolition (one major party supports this for self-serving reasons), or democratic legitimisation, generally through direct election (another major party supports this for self-serving reasons; the third major party tends to support the status quo for self-serving reasons) or maybe, if they are very lucky, only something like the Parliament Act 1911 (which almost nobody advocates for because, one, nobody knows about it, two, a comparatively modest reform of that sort would not sate the desire for democracy these days, and three, it doesn't serve the interests of any major partisan faction).
Consequently they play a delicate balancing act by attempting to ensure that any amendments that make it into legislation that actually passes are ones that are good and useful and generally not controversial, and that they don't actually block the House's legislation without extremely good reason. (To the point where the government will sometimes use the fact that the Senate has a legally separate legislative process to slip in provisions that they should have included in the version presented to the Commons but were precluded by procedural rules from adding later once this became apparent.)
(The monarch plays a similar balancing act, staying out of the way of democratic processes right up until only monarchical intervention can keep said processes functioning normally, with the possibility of monarchical intervention serving to keep political actors from straying outside the bounds of said processes. I think it no mistake that the model of parliamentary constitutional monarchy, in some form, has produced as many stable, more or less liberal democracies as it has while republican models, especially those founded on the US model, have proved far more brittle. One need only look at the history of democratic governance in Latin America to see this, though admittedly there are other factors at play there as well.)
As for the fast-moving democratic paroxysms to which parliamentary systems are sometimes subject, keep in mind that partisan electoral politics is a check on that! In majoritarian electoral systems, any legislation that is too odious to the opposition will be repealed once they take power (unless you stay in power long enough that it just becomes an accepted part of life and too much else is built around it to make it possible to repeal cleanly); this does have the effect sometimes observed that the first year or two of a new government is spent repealing all the previous government's most odious legislation rather than doing anything substantively new. In proportional systems, since most governments will be coalitions of some sort, it is often the case that each successive coalition will have some overlap with the previous (New Zealand may be an exception to this for assorted reasons), and consequently cannot fully repudiate the previous government's policies, which in turn means that any policy a government wishes to enact cannot be wholly opposed by whoever happens to be in opposition at the time, lest it be impossible to form a coalition following the next election. If the electorate agrees that the "parade of horribles" is truly horrible, then whoever takes power next will be able to move just as quickly to repeal it all as the enacting government was able to move to implement it.
I am, of course, interested to see whatever you do propose, but my inclination (which is, of course, influenced by the constitutional tradition I learned) is that these sorts of implicit checks serve to protect counter-democratic institutions much better than explicit, entrenched textual provisions ever could. (For instance, outside of a Corwin Amendment-style provision banning any amendment that would restore direct election of Senators, I am very curious to see how you propose to keep the People from, at least at some point, demanding that the democratic reins be handed back to them--or convincing them to give it up in the first place.)
I wonder, have you used this resource to get inspiration for your amendment ideas? Link: https://amendmentsproject.org/
Yes, I totally agree with you, this's all a problem. Or, perhaps, several problems put together. How to fix it is another question, but we can all agree with what you've stated today: it's a problem!
No! This is fascinating! I've never seen this before! I've certainly been into Congress.gov looking at failed proposals from time to time, but obviously this is much easier, especially for old ones. Handy!
It's remarkable to me that they've been filing "repeal the 17th" amendments for 90 years, but not once proposed a replacement.
I think there's an amendment proposal in that database that addresses the deadlock aspect; it's from the 1930s and of course requires the 17th amendment be repealed.
Ok, I can't find anything from the 1930s, but I did find this, proposed by Mark Levin:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1.
SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.
SECTION 4: Senator may be removed from office by a two-thirds vote of the state legislature.
This is not my preference, but it's not bad. Credit to Levin for recognizing the problem!
Oh, I think it's bad - as you say, it'd restore all the old problems that led to the 17th Amendment! Which IMO would be at least as bad as the current problems.
I don't think it's *crazy* to think that the deadlocks problem could be resolved by a gubernatorial appointments fallback. I don't think it's true, but it is tempting in its simplicity, especially for constitutional text. (My idea is not simple.)
Regarding your footnote about Shields defeating Stonewall Jackson, worth noting is that there is some dispute about how much credit he should get for First Kernstown--while the plan was his, he was actually wounded the previous day by a shell fragment, and battlefield command went to Nathan Kimball.
Also of note is that the day of the battle, March 23, was a Sunday, and according to legend Jackson took the defeat as a sign from God and never again launched an attack on a Sunday afterwards. It's not really true, but it's a charming story.
TIL! Thanks!
James,
Count me among those "pro-filibuster moderates." However, I think there are more than a "small handful" of such Republicans in the Senate. During his first term, Pres. Trump repeatedly called for the Senate Republican majority to end the legislative filibuster. He was repeatedly rebuffed.
Then-Senate Majority Leader McConnell gets the brunt of the blame (or praise) for this action, but the legislative filibuster was broadly supported by Republican members. And the legislative filibuster continues to have support. Just after the 2024 election, Senate Republicans (including some of Pres. Trump's allies) preemptively announced that they would not weaken the filibuster.
I do not see the current use of the filibuster as abusive. The filibuster effectively imposes a supermajority requirement to pass most major legislation. This is a good thing! Slim, temporary, and partisan majorities in Congress should not be able to radically overhaul our nation's laws. It is good that such consequential changes require broad, enduring, and bipartisan consensus.
I think the 1964 Civil Rights Act is a key example. You mention filibuster abuses during this period, and I am not well enough versed in the history to dispute you. Nonetheless, the Civil Rights Act ultimately passed the Senate with a 73-27 vote, comfortably above the two-thirds threshold for cloture required at the time. (The cloture vote itself was 71-29.)
While the Civil Rights Act was a highly contentious issue at the time, the issue has (more or less) been put to bed. To my knowledge, there have been no serious efforts to repeal the Civil Rights Act since its passage. Conversely, in a universe without the filibuster, a much different Civil Rights Act would have been passed, and I presume we would still be fighting about it today.
(I don't mean to imply that there is no dispute about the application of the Civil Rights Act itself. Notably, after 50 years of splits in the circuit courts, the Supreme Court recently had to step in to clarify that, yes, the protections of the Civil Rights Act apply the same to everyone equally.)
In this way, I see the filibuster as reducing political conflict, not raising it. Imagine if the fundamental character of our country's laws was determined every two years by a handful of House races in purple districts and Senate races in purple states. Note, this problem would be exacerbated by gelding the veto, as you suggest elsewhere. Decreasing the threshold for one party to exercise unilateral control increases the probability this happens.
Conversely, I do not think there is much value in the "cooling off" function. Suppose the Senate Democratic majority eliminated the filibuster at the start of Pres. Biden's term by lowering the threshold for cloture to a simple majority. I do not think the requisite 30 hours of "debate" would have dissuaded Senate Democrats from passing their key legislative priorities. Some examples:
• H.R. 1 (a hodgepodge of progressive priorities on "voting rights," campaign finance, etc.)
• H.R. 4 (federal takeover of elections)
• H.R. 5 (dramatic expansion of the scope of the Civil Rights Act)
• H.R. 6 (retroactive legalization of Pres. Obama's DACA program)
• H.R. 7 (criminalization of the "gender pay gap" as disparate-impact type discrimination)
• H.R. 51 (DC admitted as a state)
• H.R. 127 (federal licensing and public database of gun owners; bans ammo above .50 cal)
• H.R. 1522 (Puerto Rico admitted as a state)
• H.R. 1976 (socialized medicine vis a vis "Medicare for All")
Instead, Senate Democrats actually had to negotiate with Republicans on important issues. And it turns out, Republicans and Democrats were able to compromise on some controversial topics.
• No federal takeover of elections, but sensible reforms to the Electoral Count Act after Jan 6.
• No public database of gun owners, but some improvements to background checks, funding for mental health, funding for school safety, and guns taken away from domestic abusers.
• No inclusion of LGBT in the Civil Rights Act, but national recognition of same-sex marriages.
• No Green New Deal, but investment in U.S. infrastructure and semiconductor manufacturing.
Conversely, I think we see the negative consequences of the filibuster's absence in presidential appointments to the executive branch and the judiciary. Senate Democrats wanted to confirm radical appointments by Pres. Obama, Republicans were opposed, and Democrats nuked that part of the filibuster. As an exercise, come up with your five worst nominees confirmed during the Trump and Biden admins. Would they have gotten through a 60-vote cloture? Probably not.
I think we also see the negative consequences of the filibuster's absence in reconciliation bills, but this comment is already too long. I will leave it as a question to the reader whether they think it is positive or negative that one party can increase the deficit by trillions of dollars when, by luck of the election, that party happens to win the presidency and both chambers of Congress.
When people talk about eliminating the filibuster for some important purpose, I am reminded of the line you quoted from "A Man for All Seasons": "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?" Or as Sen. McConnell said, "You’ll regret this, and you may regret this a lot sooner than you think."
Finally, as a minor and unrelated point, Congressional Republicans have "conferences" not "caucuses." E.g., I would write, "Republicans are restrained only by the small handful of pro-filibuster moderates left in their conference." I presume this distinction once meant something.
Excellent article, as always!
Chris
Interestingly, I *did* come across a footnote while researching this that drew a 19th-century distinction between "caucuses" and "conferences." I haven't seen this elsewhere, and the context isn't quite the same so it could be wrong or I might be misunderstanding it, but:
> Formally, both parties’ “joint caucuses” met preceding the legislative balloting for Senate, to nominate the parties’ choices to fill the vacancy. A strong distinction was made between a caucus of party members and a conference. At a caucus, anyone in attendance was bound to abide by the majority vote of the caucus. Anyone not in attendance was not bound. Absences were noted by the leaders and by the press, which attended and reported the deliberations and the roll call vote(s) on the nomination. Anyone who absented himself from the caucus without “good cause” was considered an insurgent or a bolter. Because of the heavy implications of meeting in caucus, it was often difficult to call caucuses whenever joint convention balloting became protracted. Therefore, party leaders would often call conferences, which were allowed to take votes on whether to support particular candidates, but without binding participants.
(from "Party Control and Legislator Loyalty in Senate Elections Before the Adoption of the 17th Amendment" by Charles Stewart)
How this evolved into today's "conferences" and "caucuses" is beyond me (as you correctly point out, I'm sloppy about the modern distinction), but I thought it was interesting anyway.
The only thing I was particularly inclined to disagree with you about was the future prospects of the legislative filibuster in a future Republican senate. I had been under the impression that the filibuster hung together in, say, the 115th Congress because Sens. Murkowski, Collins, McCain, and Graham (a member of the Gang of 14, despite his recent reinvention) supported it; that 2 or 3 others quietly supported it (Thune, Cassidy, maybe Alexander? Romney later of course); that McConnell backed it both to keep from exposing divisions in his caucus and because he genuinely thought it was long-term beneficial; and that the rest of the caucus toed McConnell's line because McConnell had earned their trust (and he sure had; the GOP public never respected the way he richly deserved).
But then I realized that my theory of the case was based on vibes, not facts; that you are *much* better positioned to know the truth than I am; and that I will therefore defer to your view of the Senate Republican Conference!
As to the rest, I share your terror of a Democratic majority unloosed from the filibuster. Your parade of horribles largely lines up with my own from a few years ago: https://decivitate.jamesjheaney.com/p/midterms-anything-could-happen). I do think that the use of the filibuster is an abuse, because it perverts the purpose and meaning of "ongoing debate." On the other hand, I think there's a better-than-plausible case to be made that the current abuse of the filibuster is a necessary adaptation to the breakdown of the Senate and its growing polarization. A Senate that isn't a cooling saucer and which has lost the character of consensus-building needs a blunt consensus-forcing mechanism, or the United States collapses into the mad partisan fits of parliamentary democracy (sorry, readers from the Commonwealth!). The filibuster fills that role, at least for now.
On the other hand, I also think it's a tactical error, here in 2025, for the Republicans to continue to protect the filibuster. (It was a closer call when Joe Manchin and Krysten Sinema were still in the Senate, and, as you describe, the gamble of counting on them did pay off.)
I think it was demonstrably a tactical error for the Gang of 14 to make their deal in 2005: Democrats got to keep Miguel Estrada and block a variety of Bush judges, and what the GOP got in exchange was... really very little, because Reid blew up the deal and shoved through all his nuttiest noms as soon as it became even mildly inconvenient for him. (I fumed about this a dozen years ago here, and mocked the Gang of 14 rather unkindly: https://ropersanchor.jamesjheaney.com/2013/11/22/no-republicans-have-not-blocked-82-obama-nominees/ ) In principle, I'm inclined to support the filibuster for all the reasons you mention, at least in our current Senate. In practice, with one party bent on destroying it, I think the filibuster is dead and that the GOP should reap the rewards of destroying it and passing a bunch of legislation before the other side inevitably does it to us. We will regret doing this -- McConnell's warning is exactly right -- but I think we will regret even more *not* doing it.
At root, though, I think the filibuster is serving this role because the Senate is broken. If we fix the Senate at the source, I think... well, I hope... that we would find the filibuster simply wouldn't be an issue anymore. (I suppose I am tipping my hand here that my proposal in a couple of weeks will be oriented toward increasing the proportion of moderates in the Senate overall.)
Thanks for the thoughtful comment! Always a pleasure to hear from you.
Interesting point on caucuses v. conferences! Yes, it is also my vague understanding that the distinction originally concerned binding v. non-binding internal votes. However, I do not remember where I read that, and the House and Senate Democratic caucuses don't seem to use that function today, so I am left confused.
You make a fair point: My comment glosses over some of the internal conference divisions over the filibuster during the first Trump admin. Moreover, the level of support for the filibuster varied by member, and surely involved both principled and practical motivations. I agree that Leader McConnell was the keystone.
I'll just point out that Republican Sens. Collins, Hatch, McCain, Murkowski, Wicker, Graham, Strange, Burr, Moran, Blunt, Rubio, Boozman, Tillis, Capito, Thune, Cassidy, Flake, Heller, Grassley, Portman, Alexander, Kennedy, Cochran, Sasse, Young, Roberts, Isakson, and Lee all signed a bipartisan letter to preserve the filibuster.
That's 28 members by my count, and represents a lower bound for Republican support. I suspect that others also supported the filibuster but did not want to pick a public fight with Pres. Trump. While many of these members have left the Senate, I think recent experiences have convinced Republicans to keep the filibuster.
Is this a game-theoretically optimal strategy? Left as an exercise for the reader.
Concerning whether the current use of the filibuster abusive, I would be happy with a constitutional amendment that puts the supermajority requirement on the bill's final passage, rather than on ending debate. I'm OK with things coming to a vote.
Maybe I've read too much Jim Buchanan, but I think that supermajority requirements are beneficial to protect minority rights and interests. You could "fix" the Senate, and I think I'd still want a supermajority requirement. Mob rule by deliberative moderates is still mob rule. Maybe you'll convince me otherwise in the next installment!
Likewise, thanks for your thoughtful response. Always appreciate chatting!
I think making the U.S. Senate function like the German Bundesrat would fix the problems. James, have you looked at how the Bundesrat works? It seems to work well to present the voices of the different German states in the German parliament.
I suppose I'll just admit the Bundesrat is not the direction I'm going, but I do like a lot about German law and electoral systems in general!
The "cooling saucer" story might not be real, but one that almost certainly is real is the description of the Senate of Canada as "ha[ving] the sober second-thought":
https://macdonaldlaurier.ca/files/pdf/MLIConfederationSeries_MacdonaldSpeechF_Web.pdf
(What may be apocryphal about this is that Sir John A. Macdonald's use of the term "sober" was due to his being a notorious drunkard; he reportedly often showed up to the House completely sloshed, especially when in opposition in the mid-1870s when turfed out of power following the Pacific Scandal. Another possibly apocryphal tale is that Macdonald told Thomas D'Arcy McGee that since the Government could not have two drunkards, McGee would have to give up alcohol.)
While the Senate of Canada has near co-equal power with the House on paper (s. 53 of the Constitution Act, 1867 is one of the few limits), any attempt to actually exercise this power would result in popular demand for some sort of broad reform. Senators know full well that their role is to check the worst democratic excesses of the House, not to defeat legislation outright (this does not stop poison-pill amendments), and that stepping beyond this without very good reason will lead to calls for abolition (one major party supports this for self-serving reasons), or democratic legitimisation, generally through direct election (another major party supports this for self-serving reasons; the third major party tends to support the status quo for self-serving reasons) or maybe, if they are very lucky, only something like the Parliament Act 1911 (which almost nobody advocates for because, one, nobody knows about it, two, a comparatively modest reform of that sort would not sate the desire for democracy these days, and three, it doesn't serve the interests of any major partisan faction).
(Actually enacting any of these would be very difficult: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13614/index.do )
Consequently they play a delicate balancing act by attempting to ensure that any amendments that make it into legislation that actually passes are ones that are good and useful and generally not controversial, and that they don't actually block the House's legislation without extremely good reason. (To the point where the government will sometimes use the fact that the Senate has a legally separate legislative process to slip in provisions that they should have included in the version presented to the Commons but were precluded by procedural rules from adding later once this became apparent.)
(The monarch plays a similar balancing act, staying out of the way of democratic processes right up until only monarchical intervention can keep said processes functioning normally, with the possibility of monarchical intervention serving to keep political actors from straying outside the bounds of said processes. I think it no mistake that the model of parliamentary constitutional monarchy, in some form, has produced as many stable, more or less liberal democracies as it has while republican models, especially those founded on the US model, have proved far more brittle. One need only look at the history of democratic governance in Latin America to see this, though admittedly there are other factors at play there as well.)
As for the fast-moving democratic paroxysms to which parliamentary systems are sometimes subject, keep in mind that partisan electoral politics is a check on that! In majoritarian electoral systems, any legislation that is too odious to the opposition will be repealed once they take power (unless you stay in power long enough that it just becomes an accepted part of life and too much else is built around it to make it possible to repeal cleanly); this does have the effect sometimes observed that the first year or two of a new government is spent repealing all the previous government's most odious legislation rather than doing anything substantively new. In proportional systems, since most governments will be coalitions of some sort, it is often the case that each successive coalition will have some overlap with the previous (New Zealand may be an exception to this for assorted reasons), and consequently cannot fully repudiate the previous government's policies, which in turn means that any policy a government wishes to enact cannot be wholly opposed by whoever happens to be in opposition at the time, lest it be impossible to form a coalition following the next election. If the electorate agrees that the "parade of horribles" is truly horrible, then whoever takes power next will be able to move just as quickly to repeal it all as the enacting government was able to move to implement it.
I am, of course, interested to see whatever you do propose, but my inclination (which is, of course, influenced by the constitutional tradition I learned) is that these sorts of implicit checks serve to protect counter-democratic institutions much better than explicit, entrenched textual provisions ever could. (For instance, outside of a Corwin Amendment-style provision banning any amendment that would restore direct election of Senators, I am very curious to see how you propose to keep the People from, at least at some point, demanding that the democratic reins be handed back to them--or convincing them to give it up in the first place.)