A Different Congressional Diagnosis

In a recent article in The Atlantic, Yuval Levin argues that “the problem with the contemporary Congress is not so much that it isn’t passing bills as that it is failing to facilitate cross-partisan bargaining and accommodation.” According to Levin, advocates for congressional reform who take aim at the Senate filibuster threaten to undermine Congress’s core function in the name of legislative expediency. Rather, reforms to Congress must privilege coalition-building and defend or even expand the procedural rules that compel supermajorities, because broader coalitional agreements improve the quality of legislation. We disagree with this thesis. We also do so advisedly—disagreeing with Yuval Levin on matters of Congress tends to be synonymous with being wrong. But perhaps, in this instance, this is the exception that proves the rule. 

Levin looks to the Constitution and the framers’ design as the proper starting point for Congressional reform. So do we. But we believe that the framers’ message cuts in our, and not Levin’s, favor. The Constitution’s careful structure imposes its own coalitional requirements for all the reasons Levin eloquently states, but it goes no further. Additional supermajority requirements beyond those inherent in the design of Article I threaten to leech the democratic, majoritarian impulse that democratic republics require for their legitimacy. Legislating a bit more on the issues that are the most essential to the business of the Republic will restore the legitimacy of Congress. And this is what we must empower majorities to do. 

Like Levin, we believe that Congress must not only legislate but must build legitimacy, and that broad majorities help to provide legitimacy and durability to the laws that govern us. But Levin fails to acknowledge that the Constitution itself—even before institutional rules like the filibuster come into play—already ensures that Congress needs broad majorities to do anything. Bicameralism is the most apparent element of this supermajoritarian design. A majority (though only a majority) of two legislative bodies must agree on any given piece of legislation to pass it. That itself is a burden—no two collections of individuals are exactly the same—and is compounded by the House and the Senate’s differing constituencies.

The larger House with its smaller constituencies gives voice to minority groups within states. The smaller Senate was designed to give voice to state interests, while providing a countermajoritarian check in its allocation of equal representation to the states. Compounding this discrepancy in constituencies, the House is elected at the same time as only one-third of the Senate. None of this accounts for the president, separately selected by the electoral college. Thus, as Tara Leigh Grove has explained, the bicameralism and presentment requirements of Article I, Section 7 “effectively create a supermajority requirement for every piece of federal legislation and thereby give political factions—even political minorities—considerable power to ‘veto’ legislation.” John Manning and William Mayton have each observed the same: because different members in both the House and the Senate represent distinct constituencies and in turn must agree with one another on a proposed bill to pass it, the Constitution itself effectively requires a supermajority to pass legislation. 

Next, Levin rests much of his argument on the premise that “legislators will work to broaden majorities only if narrow majorities aren’t sufficient for exercising real power.” But that isn’t quite it: First, legislators in the minority have no incentive to play ball and thus to help broaden the majority unless there exists a credible threat that the majority could do something consequential without any input from the minority. Hence the problem with the modern iteration of the Senate filibuster (which Levin takes care to defend in his article).

The fact that filibustering each and every piece of legislation that the minority does not support has become the new norm indicates that the threat of narrow majoritarian action is not particularly credible. At any rate, given the supermajority requirements that the framers themselves baked into the Article I lawmaking process, the “narrow majority” of 51 percent in the House and fifty-one Senators plus the president really isn’t especially narrow. 

Secondly, even in a system of simple-majority procedures, incentives exist to craft durable legislative solutions that can motivate coalitional negotiation and agreement. There can be a desire for greater legitimacy on the part of the majority—as Levin’s examples involving the First Congress, World War II, and Civil Rights Acts demonstrate. Those same forces powered Churchill’s war cabinet during the Second World War and, until recently, held Israel’s war cabinet together. Even without a desire for legitimacy, a legislative majority is incentivized to pass durable legislation especially if there is a valid prospect of reversal in a future Congress. In this way, a threat of future legislation-by-majority tomorrow incentivizes coalitional legislating today.

Unfortunately, what we are left with currently is the worst of all worlds. Polarized politics has disincentivized legislative compromise, allowing supermajority procedural hurdles to become brick walls. The public’s call for action is answered instead by presidential power grabs, which are non-coalitional and impermanent. The judiciary, wherever it is able, strikes down the president’s unlawful power grabs, leaving the courts exposed to political attack by the other branches, who seek to divert the public’s dissatisfaction and what is, at its core, a Congressional failure.

In other words, for Congress and our broader system of government to function effectively, the threat of consequential majority action must be more real, and that is why we support a reform to the Senate filibuster whereby a bill could pass through the Senate in one of two ways: obtain sixty votes and pass immediately, or obtain a simple majority twice, once before and once after an election. Since neither political party is in the business of enjoying massive supermajorities nowadays, this scheme would apply a bit of needed pressure on the minority and majority alike. If the majority cannot obtain buy-in from the minority on a bill, it would have to go it alone and get the voters’ support (in the form of being reelected). The minority would face the flip side of that risk: if they don’t play ball with the majority, the majority could take its agenda to the voters, and then pass that agenda following the next election if it proves successful. 

That is not to say that Levin’s other proposals are not worthwhile or even necessary to restoring the health of Congress. We agree that re-empowering Congressional committees, removing cameras from committee hearing rooms, and reforming the primary process are all valuable ideas. Indeed, a broad social movement to address the root pathologies of our current political moment is likely necessary fully to restore good governance to our democratic institutions. But reforming the filibuster is more possible than many of these solutions, and we believe that the enlivening of Congress’s majoritarian impulses could go some way toward addressing the performativity that plagues our legislative branch and our broader political class today. 

This reform and others that would help to grease the legislative wheels could help nudge everyone back to the negotiating table, because the possibility of Congress wielding the extraordinary powers the framers gave it could suddenly grow more real. Moreover, it might place more power in the hands of the factions that Levin writes about: If a Manchin-Sinema-Romney alliance can make or break legislation today, it would also do so under a more majoritarian Senate. Ten Senators from across party lines could dictate whether a consensus-driven, sixty-vote-plus bill could move forward, or whether a majority’s riskier, more partisan approach should be followed. In other words, filibuster reform and the “coalition-building” that Levin desires can go hand in hand. 

Finally, as legal conservatives, we are instinctively worried by the way in which Levin and other fellow conservatives discuss “constitutional purposes” and how the filibuster serves them. All good textualists and originalists know that just like any group of legislators, the framers struck a number of precise bargains as they gathered in the hot Philadelphia summer of 1787. To be sure, they reached those agreements, enshrined in the Constitution’s text, in the service of certain principles (like engendering deliberation and compromise in the legislature, while also ensuring that it would be effective). But if we stray too far beyond the means the framers themselves prescribed for effectuating those principles, we risk going too far in service of one principle at the expense of another. 

In structuring Congress so as to strike a lasting balance between legislative values like deliberation and responsiveness, the framers took care not to include anything akin to a filibuster. In fact, James Madison remarked in Federalist No. 58 that requiring more than a majority to be present to constitute a quorum and pass legislation would reverse “the fundamental principle of free government. . . . It would be no longer the majority that would rule: the power would be transferred to the minority.” Similarly, as Justice Joseph Story later wrote in his Commentaries on the Constitution of the United States, “to give the rule to the minority, instead of the majority” is “to subvert the fundamental principle of a republican government.”

In sum, we agree with Levin that when assessing Congress’s contemporary failures, we should let the Constitution guide our critiques and our proposed reforms. But doing so means that the filibuster ought not be imbued with quasi-constitutional status. If the framers did not believe that a particular institutional arrangement was necessary, then being faithful to the Constitution might entail rethinking that institutional arrangement. Whatever the particulars, the filibuster is an appropriate target for congressional reform.

Thomas Harvey is a recent graduate of Harvard Law School. Follow him: @Tom_Harvey94.

Thomas Koenig is a recent graduate of Harvard Law School and a contributing editor for American Purpose. Follow him: @thomaskoenig98.

Image: Sunrise at the United States Capitol building, provided by the Office of Congressman Robert Garcia; Wikimedia Commons.