The Democratic Party’s narrow majority in the U.S. Senate failed to pass voting-rights legislation on Wednesday—a major defeat for the party and President Joe Biden. The effort failed because two centrist Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, joined all 50 Republicans in voting against changing the Senate’s filibuster rule, which requires 60 votes to pass most legislation. Vice President Kamala Harris said that these senators of elected “to preserve an arcane Senate rule” rather than “to safeguard our democracy and secure the freedom to vote,” while the Republican minority leader Mitch McConnell argued that “nearly every Senate Democrat wrote in permanent ink that they would shatter the soul of the Senate for short-term power.” The episode illustrated a deep frustration among many Democrats and progressive activists with the institutional structure of the Senate, which gives each state two votes, over-representing sparsely populated rural states. Some Democrats argue for abolishing the filibuster altogether, while writers for progressive publications such as The Nation and The New Republic have made cases for abolishing the Senate entirely. Why have the rules and form of the U.S. Senate become so controversial?

Sarah Binder is a senior fellow in Governance Studies at the Brookings Institution, a professor of political science at the George Washington University, and the co-author of Politics or Principle? Filibustering in the United States Senate. Binder says contentious public debate about the American Senate’s structure goes back to 19th century, but contemporary criticism is increasing as heightened partisanship and ideological division cause gridlock on Capitol Hill. Democratic frustration with the Senate is especially acute right now, since the window to pass their agenda will close if they lose unified control of the U.S. government in the midterm elections this year. Binder doubts they’ll be able to enact any meaningful reforms to the legislative body in the short term—or that their desire to do so will persist if Republicans take back power—but she says the existence of the filibuster probably harms Democratic priorities more than Republican priorities, so fights over changes to the Senate are likely to return before long.

Graham Vyse: What’s behind all the conflict about the Senate right now?

Sarah Binder: A number of issues have put a spotlight on the Senate, which typically works by supermajority rules and has been a difficult point of resistance for the agendas of both of America’s major parties in recent years. The parties have become more ideologically polarized, so there are relatively few senators like Manchin for the Democrats or Susan Collins for the Republicans who are in the ideological center. It’s become more difficult to propose policies that get buy-in from both political parties.

That dynamic is compounded, because these parties don’t simply disagree on ideological issues like the proper role of government. They’re also divided by sheer partisanship. That means Democrats can propose a set of policies that there’s been Republican support for in the past, but in this partisan environment, if one team is for a policy, then the other is against it. Meanwhile, these parties are highly competitive in elections, so whichever is in the minority thinks it’ll soon have the chance to win control of the Senate. If you think you could soon get control of the agenda, why cooperate? Why go to the bargaining table?

These barriers are surmountable—as we saw last year with the passage of what will eventually be thought of as a landmark bipartisan infrastructure law containing money for roads, bridges, and broadband—but any policy advanced by a legislative majority is going to face barriers it might not have faced in less partisan times.

Tony Yakovlenko

The first structural issue to keep in mind about the Senate is that each state in the U.S. gets two senators. What that has yielded—and it’s particularly acute today—is “malapportionment.” A majority of the population isn’t represented by a majority of the senators. States with large populations like California and New York get two senators while states with small populations like Wyoming and Idaho also get two senators, so those small states have a disproportionate impact on the policy choices in the Senate. Those small, rural states are predominantly—almost exclusively—sending two Republicans to the Senate. There’s a rural bias that’s really counter-majoritarian.

Consider the issue of gun regulations—universal background checks for gun purchases. Polls show 80 percent of Americans support that, but 80 percent of the Senate wouldn’t support it. There are direct policy consequences to malapportionment coupled with partisanship. Add in the Senate’s filibuster rule, which all but requires a supermajority, typically of 60 votes, and major policy change is very difficult. If you combine the rules of the game with the minority’s incentive to block the majority, you get stalemate more often than not.

Senate majorities have been fighting about the rules of the game all the way back to the 19th century. By the end of that century, the House had developed a pretty tough “majority cloture rule,” allowing a simple majority—50 percent of House members—to cut off debate on an issue. Today the Senate’s version of that rule requires 60 votes to cut off debate on most measures and motions. It requires 67 votes—two-thirds of the Senate—to cut off debate on measures to change the rules, meaning you could easily filibuster a motion to reform the filibuster.

The notion that you’d require supermajorities to take action was really anathema to the folks at the Constitutional Convention in 1787.

What’s driving the present debate? Frustration on the Democrats’ part that you need 60 votes to change policy. Voting-rights restrictions can be put in place by majorities of legislatures in the states and yet, ironically, it takes 60 votes in the U.S. Senate to stop a filibuster of measures to protect voting rights.

Vyse: How has the use of the filibuster in the Senate evolved over time?

Binder: Defenders of the filibuster like to say it’s inherently a constitutional feature of the Senate. In fact, the filibuster wasn’t part of the U.S. Constitution—or the original rules adopted in 1789, when the House and Senate first met. The Constitution explicitly empowers the House and the Senate, separately, to choose whatever rules they want. The notion that you’d require supermajorities to take action was really anathema to the folks at the Constitutional Convention in 1787, who had just survived the Articles of Confederation—the document in place before the Constitution, which empowered supermajorities, which brought the Confederation to a standstill. The framers of the Constitution didn’t want supermajorities.

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