Wendy Dennehy and Erin Young: Is the filibuster the best tool to protect against extremes? No. Do these things instead

Romney promotes a vehicle for obstruction over better paths to compromise.

(Greg Nash | Pool) Sen. Mitt Romney, R-Utah, speaks during a Senate Health, Education, Labor, and Pensions Committee hearing on Thursday, Sept. 30, 2021, at Capitol Hill in Washington.

In a recent op-ed, Senator Mitt Romney spoke out about the importance of democratic institutions. He is right to praise the history of individuals acting honorably within our institutions to sustain our republic. However, Senator Romney offers no recommendation for restoring the trust that has been lost in these institutions, except a defense of the filibuster.

But is the filibuster really the best tool senators have to protect against extremes and promote compromise?

This is more than the filibuster was ever intended to do and denies the power of the Senate to productively lead and actively protect. By placing such reliance on a largely obstructive measure, our senators are neglecting opportunities to use the powers the Constitution grants them to proactively solve problems.

In this critical national moment, we need leaders willing to work toward effective government, not simply to defend positions of last resort — leaders who will work toward objectives shared by most Americans regardless of party. The following actions would allow principled members of both parties to come together in defense of our rights and institutions without relying on the filibuster at all:

Model conversation and compromise

The Founders framed the Senate as a deliberative body. But the filibuster as currently applied — to prevent all debate — undermines that primary function. The Senate floor should be a model of public discussion — exploring ideas and practicing the art of persuasion. In its original talking form, the filibuster gave the minority time to fully articulate their position to their colleagues in the majority and to the American people. Senators who value the freedom of expression historically promoted by the filibuster should refuse to participate when it is misused as a mechanism to muzzle debate.

The surest way to preserve the filibuster would be for senators from each party to demonstrate a willingness to work respectfully with their colleagues across the aisle. Senators dedicated to moderation should be actively engaged in creating cross-partisan coalitions and use the language of peace, not enmity. They should not simply hold up the filibuster as a symbolic (and ineffectual) representation of their supposed dedication to compromise. Instead, they should do the work of argument and persuasion.

Senators have great constitutional power over the course our nation will take, none of which lies in the filibuster. Through their actions and direct engagement, these 100 individuals can have an enormous political influence well into the future, by modelling collaborative government in action.

Champion democracy

The most important weapon in the battle against future autocratic government is the popular vote. Disturbingly, in response to high voter engagement in 2020, at least 19 state legislatures have implemented restrictive voting laws across the country over the last year. They have done so along party lines. While all these legislative bodies passed laws with a simple majority, some U.S. senators are claiming that even debating a federal legislative response requires a supermajority. This is a gross misuse of the filibuster.

Unfortunately, the filibuster has a checkered past. It has been used to deny millions of Americans their rights, based solely on their race. This history cannot be waved away or reimagined. Senators who hope to retain the filibuster for critical moments when it can protect democracy should ensure now that it is not used to block access to the voting booth, particularly for minority populations. Instead, they should follow the example of the four senators who negotiated and collaborated on a bipartisan compromise in support of voting rights.

Protecting the filibuster is not the most effective way to promote a democratically established peace. This is the job of individual senators willing to courageously protect the right of every eligible American to freely cast their ballot and have confidence their voice was heard.

Update the Electoral Count Act of 1887

The Senate is uniquely charged with protecting our electoral processes and institutions. That power does not flow from the filibuster, but from the ability to legislate and adjudicate. Senators who are strict institutionalists can update the Electoral Count Act (ECA), a nonpartisan effort that would equally benefit members of both parties who are committed to upholding their sworn oath to uphold the Constitution.

This modernization would proactively eliminate ambiguity that could be exploited for partisan gain. Senators should act to modernize the ECA now, long before either political party has a clear advantage leading up to the 2024 presidential election. Current nonpartisan efforts to promote this critical legislation need timely bipartisan support.

If we cannot secure our electoral systems and support the peaceful transfer of power, the filibuster will be meaningless. Senators must use their power now to protect the future of our democracy and their institution.

Our institutions — and the procedures that sustain them — shine when they are used to protect the rights of the vulnerable, promote good faith dialogue and collaboration, and place boundaries around those who would use power to coerce and control. But they are not value-neutral, and if we are not vigilant, they can be used for harm.

Members of the U.S. Senate are men and women of great power. While procedures like the filibuster enable this power, they are not its source. The source of the Senate’s power, justly expressed, should lie in good faith argument, persuasion, and attention to the will of the voters who sent them to do the people’s business. We expect every senator to acknowledge that the filibuster is simply a means and not an end. The end is collaborative engagement in the legislative process with the good of the American people in mind.

Wendy Dennehy

Erin Young | Mormon Women for Ethical Government

Wendy Dennehy is the director of voting advocacy and Erin Young is the assistant director of voting advocacy for Mormon Women for Ethical Government.