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There are two reasons why any serious and effective gun ownership legislation is unlikely to pass Congress in the aftermath of the Buffalo and Uvalde mass shootings. 

One is that most Republicans don’t want gun ownership legislation of any kind. The second is that the filibuster allows them to stop anyone else from doing anything in the U. S. Senate. The key to changing the situation is to do something about the second one and that will take care of the first one. 

The filibuster is talked about as if it is a Senate rule that is necessary for the voice of the minority to be heard. That is not only not true, as I will explain later, just the opposite has happened. The filibuster now undermines democracy itself by creating what is called the tyranny of the minority that controls what does and does not get done in the Senate. 

For this reason the filibuster is an anti-democratic Senate rule that makes it appear as if the majority party can’t get anything done when that is true only because the minority in the Senate – currently Republicans – uses the filibuster to that end. 

As long as the filibuster exists, our democracy will grow more and more dysfunctional and, thus, continue to lose the trust of the American people. The irony is, we, the people, are the reason it exists and the key to getting rid of it. Let me explain.

The Constitution gives the Senate and the House the power to set their own rules. Under the urging of Vice-President Aaron Burr in 1805, the Senate dropped “the previous motion” rule to end debate. Most of us have been in groups where someone called out, “move the previous question” to stop debate. That motion requires a vote and if it passes, debate ends.

This is what the U. S. Senate dropped and once it did Senators were free to talk a bill to death, hence, creating what we now call the filibuster. As early as 1789 there are references to Senators being criticized for talking a bill to death. By the 1850s the word filibuster itself was being used by Senators to refer to the practice. 

In 1917 the Senate finally managed to adopt Senate Rule 22 that allows debate on bills to be cut off by two-thirds of Senators voting. It’s called “cloture.” In 1975 two-thirds was reduced to three-fifths of all senators which put the number at 60 where it is now. When Democrat Joe Manchin talks about keeping the filibuster, he is actually talking about maintaining the required 60 votes for cloture.

That is what we, the people, should demand be changed. Cloture (ending debate) should require a simple majority (51 votes), nothing more. That way debate is allowed without Senators being free to talk something to death.

But it’s worse than that. There really is no such thing as “talking a bill to death” any more. Also in the 70s the Senate made what may be the worst decision on rules it has ever made. It created the “silent filibuster,” a Senate rule that allows a single senator to notify the majority leadership that he or she intends to filibuster a bill if it is brought to the floor. That stops legislation in its tracks.

Intended as a way for the Senate to continue doing business and not be bogged down by someone talking a bill to death (filibustering it), the practical effect of the silent filibuster was to replace an actual filibuster with the threat of one.

Ii should be called the coward’s filibuster. The threat can be made silently (meaning privately), the public doesn’t know who made it, and good legislation is held hostage by one Senator.

The Senate is broken because of the combination of the silent filibuster and cloture requiring 60 votes. Change both of those and our government will be able to function as the founders intended it to.  What is more, we, the people, hold the power to make it happen, though most of us don’t believe it.

We do because the founders put two provisions in the Constitution to give us that much power.

The first is the sacred right of voters to determine who gets to do the people’s business on our behalf, the cornerstone of democracy itself.   

Some people talk as if Senators elect themselves when all the power is in our hands. What is stunning is that we keep sending the same people back to Washington while expecting different results, at a 93% rate. We all know that is the definition of…well, nothing good. 

We can do better, but only if we stop blaming the people we elect and own up to who actually puts them there in the first place. As Shakespeare’s Julius Caesar said, “The fault, dear Brutus, is not in our stars, but in ourselves.”

The filibuster doesn’t protect the rights of the minority. It diminishes the rights of the majority. The founders established a democracy that gives ultimate power to the people to determine who is in the majority and who is not. The fact that it changes regularly is how our power to vote ensures the rights of the minority are not only respected, but are consequential.

At any point, the minority can gain the majority depending on how we, the people, vote. That is significant and it matters so long as we don’t act as if doesn’t.

But the founders also protected the rights of the minority by establishing a system of checks-and-balances power sharing.

As long as one party does not control the Senate, House and White House, the opposition party can stop the majority from doing what they want to do. The House can refuse to pass a bill or the president can veto legislation. The Senate needs 67 votes to override it, something that has happened 6 times in the last 22 years and only 106 times in our history.   

I think the problem we have as Americans is that we like the idea of a democracy, but don’t like the slow, messy, cumbersome, and frustrating way it works. We like getting our way, but don’t like the other side getting theirs.

The alternative is to elect an autocratic leader who refuses to be held accountable by anyone and misuses power to get his or her way when the rest of government stands in the way.

More than a few people in the Republican Party seem to want that kind of government, and too many others feed that terrible idea by complaining that Washington is broken and cannot be fixed.

The argument I am making here is that it can be fixed, and must be, but will be only when we, the people, realize that if our democracy is broken, that is a direct reflection on us. After all, America is a democracy whose government is of the people, by the people, and for the people.

My hope is that one day soon, very soon, we will start acting like it. That is when Washington will get fixed.