top of page

Arguing Over the Filibuster

Time for a good-ol’ LogicChecker which takes a look at the reasoning behind a political argument, in this case an editorial that appeared in the same issue of The Boston Globe as the piece I analyzed last time.

This op-ed (reproduced below) was written by Globe regular Jeff Jacoby, a conservative columnist who is arguing against the elimination of the Senate filibuster, a topic that has been in the news lately as Democrats consider how to pass voting-rights legislation that could get stalled in the Senate if Republican filibustering requires a 60-vote super-majority to pass a bill.

If you are unfamiliar with the filibuster, you can read this piece to up your background knowledge on the topic. For purposes of analyzing Jacoby’s argument, keep in mind that the filibuster is not part of the US Constitution, but rather evolved as a Senate rule to prevent a simple majority from passing sweeping legislation without any recourse by the minority.

To begin with, the first step in the logic-checking process is to review potential biases that might distort judgement, those of the writer as well as our own.

In this case, Jacoby is a conservative which means his argument is not likely to be neutral but rather draws from that belief system. This does not mean his argument should be dismissed out of hand as simply representing an automatic rejection of whatever those who oppose his belief system prefer (partisans can often benefit from critiques of their opponents, after all). But it does mean we need keep an eye out for blind spots someone with strong beliefs can bring to an argument.

Similarly, we need to be careful not to accept or reject Jacoby’s argument automatically based on how much the writer’s political beliefs align with our own. In today’s hyper-partisan age, dismissals often happen before an argument is even read or listened to. For example, liberals may skip over Jacoby’s piece in favor of one of the many other op-eds in the Globe written from a liberal perspective, while conservatives might skip reading the Globe entirely due to perception of general liberal bias of the paper.

As critical thinkers, however, our job is to engage with arguments, rather than ignore them. To do so, we need to control for our biases, rather than be controlled by them.

With that out of the way, the piece is actually making two arguments as to why getting rid of the filibuster is a bad idea.

The first is a deliberative (i.e., future-oriented) argument which says the filibuster needs to be reformed, not done away with.

As Jacoby tells it, the filibuster used to be difficult to implement, requiring Senators to actually stand up and talk for hours or days in order to slow or block passage of a bill. This process was presented dramatically in the famous movie Mr. Smith Goes to Washington, a film Jacoby references. But, the writer claims, over time the pain and effort of filibustering was eliminated, effectively creating a system in which passing any bill in the Senate now requires a 60- vs. 51-vote majority.

In the writer’s view, the Senate (and democracy) would benefit from a return to the old rules which kept filibustering as an option, but tended to limit its use.

Jacoby’s second argument is that Democrats, who used the filibuster hundreds of times when they were in the minority, are being hypocritical by calling for its elimination now that they have the upper hand.

This argument taps into human beings’ general aversion to contradiction. Arguments that can be shown to end in a contradiction (in the form of a conclusion that says A and NOT A) are pretty much toast, but even outside of logic we tend to feel and act negatively towards people who say one thing and do another.

Jacoby’s criticism comes in the form of a warning that Democrats might regret killing off the filibuster, given that they will inevitably find themselves in the minority again at some point in the future.

Rhetorically, Jacoby taps a frequently-used tactic of quoting a figure beloved by the opposition (in this case, former President Barack Obama) to make the writer’s point for him: that eliminating the filibuster carries an enormous downside to whatever party gets rid of it as a temporary expedient.

When rendered into structured format, you can see that both of Jacoby’s arguments are pretty strong:

Deliberative Argument

Premise 1: The Senate filibuster is an effective way to prevent a majority from making sweeping controversial changes at the expense of a minority.

Premise 2: To be effective and fair, the filibuster should be used judiciously and rarely.

Premise 3: Changes to Senate rules made it easy to filibuster, increasing its use to the point where it effectively means 60 votes are needed to pass any legislation in the Senate.

Premise 4: Returning to older rules that required more effort to filibuster would return it to its original purpose.

Conclusion: To create an effective and fair filibuster, Senate rules regarding its use should be reformed, but the filibuster itself should not be eliminated.

Hypocrisy Argument

Premise 1: The Senate filibuster is an effective way to prevent a majority from making sweeping controversial changes at the expense of a minority.

Premise 2: The party in the majority would benefit from eliminating obstacles (like the filibuster) that prevent them from getting what they want.

Premise 3: Majority parties inevitably become minorities at some point.

Conclusion: Eliminating the filibuster would inevitably hand power to opponents of those who got rid of it.

As important as it is to build a case on arguments that are strong (i.e., valid and sound), effective methods of persuasion are also necessary to make that case compelling.

Regarding persuasiveness, two things that could have made Jacoby’s piece more compelling include:

  • Letting examples illustrate what he perceives as Democratic hypocrisy, rather than actually using the “H-word” himself. Like direct accusations of lying, out-and-out calling someone a hypocrite tends to make the accuser look mean-spirited and shrill, limiting the effectiveness of an attack. Better to let your opponent’s words and deeds speak for themselves, rather than telling readers how to interpret them.

  • In general, it is better to present a deliberative argument at the end of your presentation, allowing you to present yourself as offering a future-oriented solution to a dilemma outlined previously.

So four dumbbells for Jacoby, illustrating that effective argumentation requires both strong logic and an understanding of what goes on in the heads of those one is trying to convince.

Original Article

The filibuster has been bad, but repealing it would be worse

Jeff Jacoby, The Boston Globe, January 9, 2022

Senate majority leader Chuck Schumer issued a warning: If Republicans continued to block the Senate from passing two sweeping elections-related bills supported by Democrats, he wrote, then the chamber would “debate and consider changes to Senate rules on or before January 17.” That was a threat, as everyone understood, to invoke the “nuclear option” and blow up the filibuster. If successful, Democrats would no longer require 60 votes to pass their controversial measures; a bare majority would suffice.

That was on Monday. On Tuesday, Democratic Senator Joe Manchin of West Virginia came out against the nuclear option, saying he would find it “very, very difficult” to support any unilateral move to kill the filibuster. So did Senator Kyrsten Sinema of Arizona. During a Democratic caucus lunch, the news website Axios reported, she told her colleagues that “she will not support any effort to get rid of the 60-vote threshold.”

So much for Schumer’s threat to go nuclear. The filibuster is safe for now.

Is that a good thing or a bad thing? Arguments can be made both ways, but my view has long been that the filibuster ought to be reformed by returning to the rules that prevailed before 1970. The Senate should revive the old “talking filibuster,” under which a senator or group of senators could indefinitely forestall a vote on any measure by the means Jimmy Stewart dramatized in “Mr. Smith Goes to Washington” — taking to the floor to speak and refusing to sit down until the majority agrees to compromise. When a filibuster was in progress, all other Senate business came to a halt.

Those two crucial stipulations — a filibuster had to be conducted in person and it superseded other Senate activity — made the maneuver both powerful and rare. Consequently, it was a weapon deployed with great caution. During the entire 19th century, for example, there were fewer than two dozen filibusters.

But in 1970, the rules changed. Under a new two-track system, a bill being filibustered would be put aside while the Senate took up other matters. Senators no longer had to emulate Jimmy Stewart to block a piece of legislation — they merely had to threaten to do so. In effect, the filibuster became a blackball, which could be overcome only with supermajority support. Before long, it was taken for granted that every significant bill needed 60 votes to pass.

Though the filibuster continued to exist, its core purpose had been inverted: A parliamentary tactic meant to ensure debate and encourage compromise had become an artificial gimmick to prevent debate. Mixed with the toxic partisanship and angry polarization that now dominate American politics, the modern filibuster’s impact has been to make the Senate more dysfunctional and less deliberative.

And then there’s the hypocrisy.

Dozens of Democrats are decrying the filibuster as an antidemocratic travesty, a threat to voting rights, an unconscionable obstruction of the will of the majority — even, as former president Barack Obama called it, a “Jim Crow relic.” Yet as recently as 2017, a majority of Senate Democrats signed a bipartisan letter defending the filibuster and “opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate.”

What changed? Democrats and their allies claim that the stakes now are so high, and the measures they support so urgent, that the nation can no longer afford any impediment to legislating by straight majority rule.

Here’s a simpler explanation: In 2017, Senate Democrats were in the minority and a Republican was in the White House. Back then, Democrats were making vigorous use of the filibuster to block Republican priorities — over the next four years, they would filibuster hundreds of bills and nominations — while Donald Trump was the one clamoring to eliminate the 60-vote rule. “Republican Senate must get rid of 60 vote NOW!” Trump tweeted angrily. “It is killing the R Party, allows 8 Dems to control country. 200 Bills sit in Senate. A JOKE!”

In a thoughtful Politico essay a few months ago, Ronald Weich, dean of the University of Baltimore Law School and a former top aide to senators Edward Kennedy and Harry Reid, warned his fellow liberal Democrats that if they kill the filibuster today, they will find themselves in a “nightmare” tomorrow.

“Progressives pushing to end the filibuster are suffering from a bad case of amnesia,” Weich wrote. “The past three decades, in fact, are filled with moments when the filibuster prevented Republicans from pushing through legislation that would have made America a far darker place.”

Personally, I think that some of the GOP legislation Democrats blocked would have made life in America considerably brighter. But Weich’s essential point is that if Democrats deep-six the filibuster, they will enjoy no more than a short-term victory. Sooner or later, perhaps as early as next January, Republicans will regain control of the Senate. At which point, if the filibuster has been nuked, there will be nothing to prevent them from repealing with 51 votes whatever the current Senate passes by a similar bare majority.

In 2005, when Republicans were in the majority, they were tempted to do to the filibuster what Schumer and most Democrats want to do now. Obama, then a senator from Illinois, understood what was on the line.

“I understand that Republicans are getting a lot of pressure to do this from factions outside the chamber,” he said in a floor speech. “But we need to rise above an ‘ends justify the means’ mentality because we’re here to answer to the people — all of the people — not just the ones wearing our party label. . . . One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.”

It’s one of the oldest rules in two-party politics: What goes around comes around. If only both parties could manage to remember it — at the same time.


bottom of page