Why it Exists

The Filibuster in the US Senate was an accident. In 1806, per Vice President Aaron Burr’s advice, the Senate eliminated the move to the previous question motion from their rule book. This was because Aaron Burr viewed the motion as redundant. With it’s repeal, the filibuster became possible.

Alteration

Senators barely used the filibuster until the 1880s. In 1917, President Woodrow Wilson implored the Senate to create the cloture motion, which ended filibusters with a two-thirds majority vote of all Senators present. In 1975, the Democratic Majority under Robert Byrd changed the cloture requirement to three-fifths of all Senators and prevented filibusters from stopping all other Senate business.

The Consensus Myth

The filibuster’s proponents often chide at people who detract it by claiming it forces compromise. Despite this perception, Harry Reid and Mitch McConnell eliminated it for executive and judicial appointments, respectively. If Congress was interested in building consensus and promoting power sharing, they’d create institutions forcing those arrangements rather than relying solely on an archaic procedural rule.

Let’s Build Consensus For Real

According to Arend Lijphart, a renowned political scientist, democracies with intra-institutional power sharing perform better on average than those without it. An institution that accomplishes intra-institutional power sharing is multiparty coalitions. Therefore, advancing proportional representation, which allows for multiple parties, is imperative to creating more consensus.

We also have to make judicial appointments less partisan. Congress can accomplish this by passing the following Constitutional amendment:

Section 1

The President of the United States shall appoint one justice to the Supreme Court of the United States in the first and third years of their term with the advice and consent of the Senate. The confirmation threshold for Supreme Court justices shall be two-thirds concurrence. Supreme Court Justices shall serve one eighteen-year term and be sworn into office on the first of August in the year they’re confirmed.

Section 2

If the Senate does not exercise their advice and consent privilege within 90 days of the President’s nominating a justice to the Supreme Court of the United States, the Senate shall be deemed to have waived their advice and consent authority with respect to the nominee, and the nominee shall be seated to the Supreme Court of the United States.

Section 3

The Supreme Court of the United States shall consist of 9 justices: 1 Chief Justice and 8 Associate Justices. If a justice vacates an office prematurely, that office shall be left vacant until the appointment period specified in Section 1.

Section 4

All federal appellate court nominees shall be selected by an independent commission comprised of the Chief Justice of the Supreme Court of the United States and the most senior members of the US Courts of Appeals. They shall compose a list of nominees for each vacancy every quarter and present it to the President. The President may accept the recommendation or ask to reconsider the recommendations.

Finally, we need rules that guarantee minority parties rights. For one, minority parties must be allowed to offer their own alternatives to bills under consideration. Also, three-fifths of all Senators must be required to amend or adopt Standing Rules of the US Senate. Finally, any bill with a majority of Senators co-sponsoring it must receive an automatic floor vote.

Conclusion

Democrats and Republicans must end their game theoretic death spiral and build an enduring consensus in both the Senate and the House to keep the vitality of our democracy alive.