America as Filibuster Society

What do we talk about when we talk about the frontier? For more than a century, Americans haven’t been able to avoid using that term to describe our society’s past, present, and future. It may be time to find a better one.

Frederick Jackson Turner inaugurated a new school of American his­toriography, and a new strain of national myth, when he wrote in 1893 that American society had been defined by the constant return to “primitive conditions” along the westward-advancing line of settlement. The frontier preserved democracy, opportunity, and a vital spirit that together set the United States apart from Europe. But Turner declared that, with the disappearance of the physical frontier, announced to little notice in a U.S. Census bulletin in 1890, an epoch in American history had closed.

Turner’s thesis gave rise to two twinned registers in American dis­course that remain dominant today: laments, from Right and Left, over the dim prospects of an America without the frontier; and optimism about possible “new frontiers,” a capacious category encompassing eve­rything from anti-poverty crusades and space exploration to techno­logical innovation and urban gentrification.¹ In recent decades, a critical version of the frontier narrative has gained salience: accounts of “settler colonialism” invert previous generations’ moral triumphalism, drawing attention to the frontier’s violent exclusions, without contesting its centrality in American history.

Like most national myths, the concept of America as frontier society gestures, however imprecisely, at something real. Many realms of Amer­ican life are still prone to periodic convulsions where the frontier drama is reenacted.² But “frontier,” on close inspection, is not the best term on which to hang a theory of these convulsions. The word refers to the line drawn on a map to denote the approximate geographic extent of settle­ment—a line, as Turner admitted, that was inevitably deceiving, in that it couldn’t capture the exact nature of the collisions and changes occurring in the broader area at the forefront of settlement.³ It was really those collisions, and their consequences, that Turner saw as the central feature in American history. The frontier was merely their rough address.

What are the actual forces at work, then, in the winning of America’s “new frontiers,” beyond rosy encomia to heroic trailblazers and heated denunciations of exploiters and profiteers? What does this “creative destruction” look like in practice? It’s clear that particular groups are involved in these endeavors, with particular collective interests tied to their new venture, and a specific relationship to the state. A new concep­tual frame is needed to examine the political, social, and economic logic of the periodic upheavals in American life that result from these dynam­ics.

We might call this process filibusterism, after its protagonists.

Blackmailing the State

Before the term “filibuster” (derived from the Spanish filibustero from Dutch vrijbuiter or “freebooter”) came to describe a method of legisla­tive delay, it referred to a particular kind of nineteenth-century adven­turer. These original filibusters led expeditions into foreign countries in the Americas, seeking to conquer territory and, eventually, persuade the U.S. government to annex it.

Tennessee native William Walker was perhaps the most famous of the early filibusters. After leading an army of mercenaries into Nicaragua and establishing himself as president of the country in 1856, he was driven out by Costa Rican–led forces and eventually handed over by the British Navy to the Honduran government, which executed him. Not a rousing success. But the process by which Texas and California became part of the United States—Americans settling land in a foreign country, establishing local control, and eventually obtaining the territory’s ab­sorption into the Union—can only be described as successful applications of the same set of tactics.

In nineteenth-century filibusters, we glimpse the contours of a dynamic that in different incarnations has replayed itself incessantly in American society, from the colonial period to the present day: a group makes an independent venture into some “new” area that ends with the venture’s absorption by the state, on terms favorable to the group in question. This logic applies broadly: from the backwoodsmen who defied the crown’s prohibition to cross the Alleghenies and settle what became Kentucky, to the machine politicians who integrated their appa­ratuses into the nineteenth- and twentieth-century state, to the Uber executives who end-ran local prohibitions in a successful bid to obtain regulatory approval. “Filibusterism” is a better description of the events gestured to in these examples than “land grabs,” not just because it is less moralistic but because it points to the thing which makes all success­ful land grabs successful: that the state, in the end, signs on the dotted line.

Filibusterism, in this broader sense, works like this. Without asking permission, a group moves into a loosely controlled territory, and sets itself up there. The group knows that it is in violation—sometimes ambiguously, sometimes flagrantly—of established law or practice, so it seeks to entrench itself as deeply as possible, as quickly as possible, and in the greatest numbers possible. That way, it can increase its odds of survival.

But the real goal is more than just survival. The group eventually hopes to convince the state not just to permit its activities, but to support them. This is because filibuster activity entails risk, and the state is the only actor powerful enough to defuse this risk and, ultimately, consolidate the filibusters’ enterprise. But the state, in the majority of cases, is first ignorant, then reluctant to involve itself, then hostile to the filibuster cause. It is disruptive, it is risky; the state would rather leave it to its own fate—but sooner or later a decision has to be made. Crack down and wipe out the filibusters, a course that requires effort and expense, and makes enemies of the filibusters and their allies? Or pro-vide them the imprimatur—and the support—that they desire, some­thing that also comes at a financial and political cost?

Urban gentrification, the process by which professional-class “pio­neers” migrate into poorer urban neighborhoods, eventually resulting in the displacement of the established population, illustrates the dynamics of filibusterism well. Looking at the development of this phenomenon in brownstone Brooklyn from the 1960s onward, Suleiman Osman de­scribes how the initial “white-collar émigrés moved there with a sense of zeal.” These were sympathetic figures in the eyes of the New Left: Jane Jacobs–reading believers in urban life in all its racial and class diversity, in an age of suburban self-segregation. But by the 1980s, real estate in the Brooklyn neighborhoods the émigrés had colonized, many of whose names and supposed boundaries had been invented out of whole cloth by the émigrés themselves, was among the country’s most expensive, and the previous residents’ days were numbered.

No one told the gentrifiers to move into those neighborhoods. As Osman puts it, “gentrification did not originate in . . . city hall.” But once they were sufficiently established, it turned out they had things to ask of the state. Relentlessly opposed to central planning—associated with urban renewal projects and the hated Robert Moses—they battled their neighborhoods’ “aging ward bosses,” seeking to win decentralized power for themselves. By the 1970s, the white-collar émigrés had ob­tained a long list of public sweeteners and handouts, including special mortgages for “young pioneers” and tax incentives for home improvement.⁴ For the displaced residents, no such public help was forthcoming. As we all know, the broader story of gentrification, playing out in neighborhoods across the United States, most often ends with the creation of a new upper-class neighborhood, complete with upscale boutiques, WeWorks, and full integration into the luxury real estate market—a typical conclusion to a filibuster saga.

Or consider the tactics employed to accomplish the rise of Uber, a more organized and well-capitalized filibuster project. The rideshare company rolled out its service in cities before obtaining regulatory approval—trusting, often rightly, that it could rapidly acquire a big enough user base to force local authorities’ hand. Executives termed this strategy “principled confrontation”: a filibuster mantra for the twenty-first century. The novel aspects of the service Uber offered—black cars and rideshares called with an app, driven by contractors and assisted by an algorithm—inserted it into a legal grey area that the company exploited to the maximum.

In Portland, Oregon, Uber launched without city officials’ approval, then tried to elude regulators by individually targeting them, preventing them from calling cars on the app. In Seattle, “in a matter of weeks, Uber was able to grow its ridership before the city even knew what happened. By the time regulators had arrived, Uber was too popular with citizens to try and shut it down.”⁵ The company, along with com­petitor Lyft, outmaneuvered local authorities and entrenched taxi and transit unions by presenting them with a fait accompli. Portland, Seattle and dozens of other cities had little choice but to change their laws after the fact to accommodate the rideshare services’ emergence, including dropping rules requiring drivers to undergo background checks. The filibusters had won state permission—and state protection.

Life in a Filibuster Society

Filibusterism in its original form was colonial and involved taking over physical territory by force. But as the above examples suggest, we can talk about economic or even cultural forms of filibustering: the applica­tion of the same set of tactics to other realms. It is a kind of primitive accumulation that is repeatable indefinitely as new realms are opened up within a modern capitalist society (as Turner’s “return to primitive conditions” suggests).

The United States certainly has no monopoly on filibusterism, which exists in all countries to some extent. Israel’s West Bank settlers, with their ambivalent, intimate relationship with the Israeli state, offer a con­temporary example of the classic form of filibusterism. But the phenomenon is probably most common in the countries of the New World. In Brazil, garimpeiros (illegal miners) and land speculators in the Amazon and agri-pastoral frontier in the Center-West offer examples of a fili­busterism broadly aligned with the Right; Guilherme Boulos’s Movi­mento dos Trabalhadores sem Teto represents an attempt to reclaim the tactics of filibusterism for the urban Left.

Filibusters are essentially a type of committed speculator. Like wildcatters, they take advantage of chaos, but while wildcatters merely seek to profit while they can, filibusters are intent on “going legit.” More aggressive than mere boosters, sometimes they are formally orga­nized, sometimes ordered only spontaneously. They are often, but not invariably, drawn from the middle ranks of society. They perceive themselves as “the little guys,” and they are not completely wrong: they tend to have some capital to invest in their new enterprise, but not lavish amounts. Large accumulations of capital get involved in a filibuster enterprise once it seems to have staying power: these can help the project secure final absorption by the state. (The lavish infusions of venture capital that preceded Uber’s most aggressive phase of expansion offer one example.) And capital invariably cashes in once the filibuster project’s approval by the state is guaranteed, a process that sometimes catapults a few of the filibusters themselves to the heights of wealth. But the big money tends not to be there at the outset.

Though they are more closely associated with the Right, the Ameri­can Left has not been able to resist defending filibuster groups when they seem to operate in alignment with its causes, from the Jayhawkers of Bleeding Kansas, to urban gentrifiers (for a time), to the growers and associated interests pushing marijuana legalization at the state level. The phenomenon of irregular migration to the United States presents a par­ticularly interesting contemporary example of filibusterism, with some eleven million unauthorized residents effectively engaged in a collective attempt to compel the U.S. government to formalize the status of at least some of them.

What is most important to emphasize about the filibuster, marking a stark contrast with the idealized figure of the pioneer, is the possession of agency but not independence. Filibusters move first, taking advantage of some state of affairs—a technological innovation, a slackening of con­trol over some realm of political or economic life—to insert themselves and begin their operation. But their final success depends entirely on the state, as they understand perfectly well.

No wonder, then, that many of Silicon Valley’s wealthiest executives, having made their fortunes through forms of economic filibusterism (wringing protection for their fledgling enterprises from the state through subsidies, state contracts, friendly regulation, and more), pair encomia to the free market with a close relationship with the state. Such contradictions reflect the ambivalent position of the filibuster. The offi­cial ideology of Silicon Valley prefers to distinguish “rent-seeking” economic actors from genuine “innovators.” Filibusterism, as a concept, gestures at the process by which the innovator is established as the rent-seeker—was already the rent-seeker, albeit a special subtype, from the very beginning.

Though filibuster groups have been controversial throughout Ameri­can history, most are called pioneers or entrepreneurs by their defenders and are considered representatives of an American tradition of risk-taking and self-made industriousness. Certainly, many are brave and innovative. Such activities require a finely tuned opportunism and, gen­erally, no small level of financial or personal risk. It is also undoubtedly true that filibuster activity, broadly construed, is responsible, directly or indirectly, for a large portion of the economic and political might of the United States, historically and today—from Silicon Valley, to the frack­ing boom, to Sunbelt real estate.

But to see filibusters solely in heroic terms ignores their intention to socialize the risks they are undertaking. Their intrepid bid to establish themselves in a new endeavor will attain total success only when the state agrees to underwrite them. The benefits of the filibusters’ success generally accrue first and foremost to the filibusters themselves, while the shared costs are sometimes high and are not always clear in advance. Democracy versus authoritarianism, state versus society, central plan­ning versus the free market: these dichotomies fail to describe the filibuster phenomenon in full. A polity characterized by the emergence and assimilation of this type of venture is decentralized but not proce­durally democratic, its state passive yet powerful, its society active yet, in the last instance, dependent.

Where filibusterism is so widespread that it permeates society, it takes a toll on the state, which becomes accustomed to its role in dia­logue with filibuster groups. The filibusters are nimbler, move faster, have a better sense of the landscape. The state is the slow-moving but powerful arbiter. A state repeatedly subjected to filibuster demands threatens to become a custodian state. It is a custodian in a double sense: in that it is chiefly occupied in dealing with demands of private groups to take custody of the projects they initiate; and that it is mostly engaged in trying to clean up the messes these groups make.

The custodian state is not the night-watchman state of libertarian fantasy. It is repeatedly compelled to exert its power by and on behalf of the filibusters; it still has the final say in a range of realms, and the Weberian monopoly on violence; but it is reactive rather than active. Not capable of central planning, not capable of dirigisme, of surveying the polity and channeling private forces in one direction or another, it struggles even to formulate industrial policy, immigration policy, or to maintain an adequate welfare state. It is a slumbering giant—or a Goliath facing a dozen Davids. And each filibuster demand, representing a request for state assistance to a single faction, depletes the resources that might otherwise be directed toward universal commitments. The filibusters notice new developments in the social realm quicker than the custodian state does, and the latter eventually settles into this shortsightedness—meaning often it cannot act capably to assist its citizens even when it wants to. In short, a state vitiated by constant encounters with filibusterism becomes the caricature drawn of it by libertarianism and its ancestors. The qualities attributed by libertarians to the state in gen­eral—ignorant, slow-moving, but finally domineering—are in fact the qualities of the custodian state in particular.

A typical view shared by American liberalism and sections of the Right (in different versions), on the other hand, holds that the dysfunction of the U.S. state comes from its being captured by special interests. Removing these interests’ privileges and making space for nimbler and more innovative forces to supplant them is supposed to represent the formula for renewal. But a close look at filibuster dynamics through American history shows that the rot goes far deeper: it is precisely the “innovators” of today that become the vested interests of tomorrow; and in the course of their ascent these beloved pioneers are themselves responsible for perpetuating many of the debilities of the American state, then as now.

All this has consequences for the current conjuncture. Domestically, America seems caught between restraining filibusterism and empow­ering it. With an eye to the world stage, the U.S. federal state, in many regards long accustomed to a custodian role, is now seeking to restore its capacity to act in the realm of industrial policy. This is to respond to its Chinese rival, possessed of a more socioeconomically aware and active state that is comfortable defining and redefining the terms for a private sector that this state itself summoned into life not so long ago. Yet the entrenched filibusterism of U.S. society, though in many ways an advantage for America, has depleted its state’s resources and is now rendering clumsy its efforts in the industrial realm, limiting their effects. To understand the possibilities presented by the current situation, it is necessary to look at how filibusterism has changed shape across the span of U.S. history.

From Filibuster Society to State Filibusterism

Filibusterism has thrived in America from the earliest colonial period. Circumstances offered ample opportunity: besides the obvious appeal of colonial life to those with a special taste for risk and a desire to engage in some new venture, there was great distance from the metropole and great proximity to cultivable land (legal prohibitions and native inhabit­ants notwithstanding). An early seventeenth-century example is present­ed by the takeover of Kent Island in the Chesapeake Bay—part of Catholic Maryland—by a canny Protestant named William Claiborne, who used it as an Indian trading post for decades, in defiance of Maryland’s colonial rulers, all while seeking to get the English crown to award it to him instead.⁶

The state with which colonial filibusters were partnered in their delicate dance was, until independence, the English crown and its colo­nial emissaries. With the establishment of the republic, this became the U.S. government, but the relationship did not change in kind.

Filibusterism was not the sole method of westward expansion—at times it contended with the state’s urge to plan, which asserted itself, after the filibuster chaos of the settlement of Kentucky and the immediate trans-Alleghenian frontier, in the orderly squares of the Northwest Ordinance, and in the “internal improvements” credo of the Whigs. But it was always a major force and often the chief motivator. Settlers de­ployed the tactics of filibusterism to draw the country across the continent in anxious collaboration with the U.S. government: first ad­vancing beyond the territory where they could be protected from Indian attack, then obtaining further concession from their own government. Military incursions, new forts, fresh treaties banishing Native Americans further outward, all of these consolidated the previously outlying settle­ments, after which the settlers moved on, pushing the new boundaries and beginning the cycle anew.

The boundary between settlers and the state could be tenuous, of course, and it partially collapsed with the election of Andrew Jackson, the first filibuster president (literally; as general he had almost singlehandedly, and partially by accident, wrought the incorporation of Flor­ida into the United States). With mass expulsions of Native Americans, Jackson put the full repressive apparatus of the state in motion in order to open up new areas for settlement—yet, not coincidentally, at the same time he sought (in his war with the first U.S. central bank) to weaken its capacity to act directly in other ways.⁷ Under Jackson’s likeminded successors, the American state exerted itself to assist private groups’ impetuous incursions into new areas—including by force of arms.

The Civil War, besides expanding the reach and confidence of the American state, inaugurated a new stage in the cooperation between it and the filibusters. A model was provided by the Homestead Act of 1862, passed through Congress in wartime (with Southern resistance eliminated). At once throwing open new lands for settlement and setting formal guidelines for their apportionment, it sought to grant filibuster demands in advance while channeling them through the apparatus of the state in the hope that it could guide them toward the state’s goal. This might be called state filibusterism, in which the state aims to transcend its merely reactive character, not by stamping out filibusters, but by intentionally harnessing their potential.

Much could be accomplished through this method, but its limitations became apparent just as quickly: a Southern Homestead Act, intended to make use of the South’s public lands to bring landownership to freed­men (after the withdrawal of the initial promise of mass confiscation of lands from Confederate planters), was passed in 1866. This proved completely hopeless, and moreover cruel of Congress to imagine the freedmen, with no capital to muster, were in any position to compete with the inevitable floods of speculators who swooped in to purchase and reclaim the mostly swampy land. The law was a failure long before it was repealed in 1876.

The story of these two Homestead Acts indicates the double valence of the long American tradition in which the state itself opens new areas to be exploited by private actors in an attempt to accomplish indirectly some aim. The aim in question generally only gets accomplished if there is strong, preexisting filibuster energy; and where there is strong filibus­ter energy, there is rarely the hope to uplift, en masse, a downtrodden group. Filibustering is not an activity the subaltern has much ability to participate in—we have seen that it is typically a petty-bourgeois enter­prise—and handouts to filibuster groups, whether tendered in advance or ex post facto, tend to come at the subaltern’s expense.

The transcontinental railroads, constructed at practically the same moment, represented another classic example of state filibusterism. The federal government gave out half the public land along the tracks to the railroad companies, keeping the other half for itself: but the rise in land values from the railroad would make the gift more than pay for itself. The railroad companies, meanwhile, “put little or no money down” and were crowned monopolists by the U.S. government, for the favor of accomplishing on its behalf the settlement of the Great West and the projection of U.S. control over it.⁸

If the robber barons were prototypical filibusters catapulted into the commanding heights by the success of their enterprises, Progressive reform represented, among other things, the typical hatred of the respectable classes for the lower-middle-class filibusters, and their desire to restore order to a society racked with filibuster chaos through moral cleansing—a project that was eventually taken up by the state, with some effect. The half-century from 1890 brought with it progressively greater limits on filibusterism.

State Filibusterism in the New Deal

The New Deal moved in two directions at once, placing firm checks on filibusterism on several fronts, while bringing the state filibuster apparatus to unparalleled heights of sophistication and power, and reshaping American society in the process. The first tendency is illus­trated in its financial interventions, including the early construction of a federal deposit insurance program, intended to tame wildcat banking and make the mercurial realm of finance, until then wide open to all sorts of filibusterism, into a domain surveilled by the state.

But attempts to bring a measure of financial stability to American life in other areas transformed into something far more ambitious. In his classic study of American suburbanization, the aptly titled Crabgrass Frontier, Kenneth Jackson describes how the New Deal housing agen­cies—the Home Owners Loan Corporation and the Federal Housing Administration—were called into being to combat catastrophic condi­tions in the housing market (fully half of home mortgages in default by 1933, by which point construction of new housing was down 95 percent from five years previously).⁹

Introducing the self-amortizing mortgage, systematizing appraisals, insuring home loans on a mass scale, the New Deal state succeeded in lowering interest rates enough to make it cheaper for the middle and even lower-middle classes to buy than to rent a home. Jackson credits these agencies for the sharp rise in homeownership from 44 percent in 1934 to 63 percent in 1972. The result was “one of the largest mass movements in our history”: the titanic rush of the middle classes out of the cities, a phenomenon accelerating to breakneck speed after the war.¹⁰ The filibuster activity unleashed by standardized, government-backed mortgages and the resulting flight to the suburbs was tremendous. Suburban developers laid out new tracts as fast as they could, trusting they could obtain incorporation and city services later for the new com­munities being constructed out of forest and scrubland. This was state filibusterism taken to an entirely new level: not only had the state opened this frontier, it had helped create it out of whole cloth. In the process, it created novel bureaucratic state organs, in the HOLC and FHA, that worked to channel filibusterism and, for good and ill, in so doing became nearly as aware of changing social circumstances on the ground, at a granular level, as the filibusters themselves.

Silicon Valley as Keynesian State Filibusterism

If the New Deal state represented both a high-water mark for state filibusterism and a certain transcendence of the limitations of the custo­dian state, the boom decades that followed would lean more toward the former. This was the age of Keynesian state filibusterism, and its most famous result was Silicon Valley.

By making available lavish military-industrial contracts, the wartime and postwar state essentially introduced, intentionally, a new economic territory to be exploited by insurgent filibuster forces. The broader aim this national security state hoped to accomplish was simple: winning the Cold War, and it was only dimly aware of the domestic transformation it was enabling. The contracts were duly taken advantage of by canny figures like Stanford’s Fred Terman, who saw in the federal money the makings of a tech cluster he helped nurture—and a chance to establish Stanford among the country’s top universities. This local group, pro­pelled also by David Packard of HP, the “booster-in-chief” of what would become Silicon Valley, soon gathered enough momentum soak­ing up state contracts to achieve its great filibuster goal: entrenching itself as an independent force facing the Eastern military-industrial-technological establishment based mostly in the Boston area. Once done, the Western cluster acquired all the trappings of a mature enter­prise: its own lobby in Washington, its own dominant titans—and its own pool of “venture” capital to allocate, to ensure that subsequent upstarts would not elude their grasp, as they themselves had eluded the grasp of the East.

Summing up the course of events, historian Margaret O’Mara writes that Silicon Valley is “neither a big-government story nor a free-market one: it’s both.” We can be more specific: It’s a state filibuster story. O’Mara emphasizes that the developing tech cluster in the West was “allowed to grow organically” by the postwar state; Defense contracts were awarded, but it was not systematically planned. Compare that to de Gaulle’s dirigiste answer to Silicon Valley, the Plan Calcul: a “mas­sive, multiyear effort toward building a homegrown French computer industry [featuring] education programs, corporate partnerships and . . . research parks.”¹¹ This is not to assert the superiority of the U.S. state-filibuster approach, more successful in this case than the dirigiste meth­od, but rather to illustrate that even at its most generous—and most successful—state filibusterism does not jolt the state out of its custodian role, nor out of its tendency toward detachment from and often igno­rance of the cutting edge.

State Filibusterism from Neoliberalism to the
Rebirth of Industrial Policy

As the twentieth century drew to a close, state filibusterism in the United States became less ambitious. The major economic and demographic trends continued to be the ones first set in motion in no small part by state filibuster efforts during the postwar era—for example, the expansion of the Sunbelt, initiated by military-industrial largesse to a burgeoning aerospace and high-tech manufacturing industry, delighting ambitious Western boosters. The growth of the Sunbelt cities, Los Angeles (in an earlier phase) and Phoenix (the classic example of a postwar Sunbelt boomtown) represented a gargantuan filibuster effort on unprecedented scale.

With frantic real estate developers erecting ranch-style houses as fast as they could, these entire growing cities counted for their success not only on the state contracts that anchored their high-tech economies, but on two other sources of political support: the provision, by the state, of new water resources for these desert or semidesert cities (in Phoenix’s case, from the hotly contested Colorado River supplies), and on the acquiescence of the polity as a whole to the vampiric role that the Sunbelt plays in the national economic geography, siphoning industry, people, and taxes away from the Northeast and Midwest states with their more robust labor protections and welfare apparatuses. Florida, with its own bristling array of wildcat real-estate developers, also has its own distinctive method of wringing filibuster opportunity from the resources of the American state. By drawing retirees from a broad swath of Eastern states, it channels federal money, via Social Security and Medicare, away from those states and keeps it for itself.

In the 1980s, the modality of state filibusterism in the United States changed from Keynesian to neoliberal—or, one could say, from “posi­tive” to “negative.” Keynesian tactics, involving the creation of subsidies or stimulus for some activity, are “positive” state filibusterism in that they use the power of the state to create a new ground for filibusters to exploit. “Negative” state filibusterism, in contrast, consists of inviting filibusters to colonize some territory formerly held by the state. (In historical terms, the Louisiana Purchase is positive; the Homestead Act is negative.) Although both modalities have their limits, negative state filibusterism has more obvious ones, in that the state does not have infinite bulk to slough off.

A precise example of this transition is provided by the successful 1970s filibuster effort of the emerging biomedical industry-university nexus to build an empire through intellectual property carved out of the postwar federal research economy. Though the major agencies each had their own policies, the federal government generally retained the patents for technologies discovered through its contracts, and universities gener­ally had little involvement in the patent process. But during the 1970s, universities started pressing for patents, eager to draw benefit for them­selves from new directions in technology, as the rising tide of federal university funding began to crest. Stanford and the University of Cali­fornia system led the way, but this was a broad-based filibuster effort. During the 1970s, the authors of a monograph on Bayh-Dole write, “university patenting grew significantly and became less concentrated,” including some schools with “little or no previous experience.”¹²

In response, the federal research state obediently tacked toward a more permissive policy with respect to federally funded inventions, and in 1980 the Bayh-Dole Act formalized the shift, allowing universities to keep the patents in most cases (with only “march-in” rights and a free li­cense reserved for the government). Universities could then turn around and license the invention to private companies—which they happily did, first to small ones, then to big ones. Universities had lobbied hard for the shift, which lawmakers justified as a bid to revitalize U.S. industry amid fierce international competition by allowing nimble private forces to overcome “bureaucratic red tape” and harness the scientific breakthroughs of America’s still world-leading research universities, thus making better use of the tax dollars that funded the research. Bayh-Dole initially gave preference to universities and small businesses, but restric­tions on large businesses were lifted in 1983, and what restrictions remain have been customarily waived by the government for decades—as Erik Peinert writes in these pages, “essentially privatizing patent rights even when the law required that they remain public.”¹³

Bayh-Dole was a tremendous concession to biotech filibusters, a bid to buoy emerging players like Genentech—whose 1980 IPO had Wall Street salivating—by undermining the federal research state. Taken together with a favorable Supreme Court decision the same year, Dia­mond v. Chakrabarty, which allowed living organisms to be patented, it was part of a concerted negative state filibuster effort to create a replace­ment for the traditional heavy industry the country was losing.¹⁴ This effort achieved considerable success, as the growth of U.S. biotech and pharmaceutical companies attests, but the drawbacks of the new IP-intensive industries, including scarce employment and high-profit, low-investment behavior, are now well known.

One could trace a similar negative-state-filibuster trajectory in the saga of financial deregulation and the parallel financialization of the U.S. economy since the 1980s—the state opening up a vast new terrain for speculative activity by partially disassembling the New Deal financial regulatory apparatus. Yet over the past two decades, negative state fili­busterism has crept toward its limits. There are fewer terrains left now within the state that can be palatably turned over to the filibusters. Even negative state filibusterism requires an imagination and intentionality now seemingly lacking, and political resistance to this model has grown. Instead, filibuster projects over the past two decades, as the above exam­ple of Uber suggests, have tended to be more of the classic variety—that is, not principally initiated by the state at all.

The Crisis of the Filibuster Society

Today, filibusterism in America is caught in an impasse. Challenges launched across the 2010s, from the liberal Left and socialist Left, seeking to tame filibusterism with the power of the state as the New Deal once did, are largely spent. Yet a Right still carrying on its long love affair with filibusterism struggles to summon a vision for how the state might harness filibuster energy in a transformative, intentional direction, falling back on more or less heedless handouts like school choice, deregulation, and handicapping the administrative state (now achieving results with the downfall of the Chevron doctrine). Industrial policy under the Biden administration, on the other hand, has sought to revive the state-filibuster tradition of the twentieth century, erecting an architecture within the state of fillips to filibusterism. But this program’s comparative lack of ambition is evident. No new agencies, few new administrative apparatuses, most of the money spent on tax credits for businesses and individuals: hardly a precise tool, let alone one that enhances the state’s capabilities. In the meantime, filibuster projects seeking state approval continue to reshape the American social landscape, some facing political resistance—illegal migration, drug legalization—others, like sports gambling, hardly resisted at all.

What is the best path forward—taming filibusterism, a return to grand acts of state filibusterism, or simply letting filibusterism rip? America would be, if less dynamic, more just and reasonable with less filibusterism, and the extent of the U.S. state’s continued deference to filibusters is an embarrassment, but the first option is most likely im­practicable under current conditions. Filibusterism remains too strong a force in American life, and it is hard to discern how a political coalition could currently be assembled for the necessary reform and fortification of the state. A more practicable goal along these lines would be to shore up state provision of social services since, as we have seen, efforts to mobilize filibuster energy to remedy social ills are generally in vain.

Filibuster energy can be a quite useful tool when directed toward other goals. And channeling it through new, more sophisticated state filibuster programs can make it into a somewhat more rational and orderly process, though this can be a dangerous game. Certainly, to permit unbridled filibusterism is to cede the field to forces that generally have no interest in the well-being of society at large, as the successful recent filibuster efforts by gambling interests suggests.

For maximum effect, efforts to channel filibusterism should be more than mere giveaways to a filibuster group that seems sympathetic. The state should only make such giveaways when a goal of its own is accom­plished simultaneously, and ideally only when doing so also improves its own capacities and attention to changes at the societal level. Creating new, continuously active bodies that can learn from filibusters as they aid them—Jigar Shah’s loan program within the Department of Energy may be an example—could be a goal of state filibuster efforts.

But the fact of the matter is that a state dependent on filibusterism to accomplish its goals is extremely limited in its range of action. Where there is no filibuster appetite, it is unable to act; when there is more appetite than expected, it is overwhelmed and behind the action. Its most important accomplishments, as we see with Silicon Valley, general­ly happen by accident.

These constraints will probably remain with us. Accordingly, what the filibusters themselves do next is likely to matter most for the for­ward trajectory of U.S. society. This is why better tracking of their movements, and predicting them where possible, is so important. For despite their powers of granular discernment, when it comes to abstrac­tion or forecasting, filibusters are null, incapable, unthinking. Aware only of the circumstances in front of them, and thinking only of how to take advantage, they have little idea what broader consequences their own actions will soon bring for their society, and for the world.

This article originally appeared in American Affairs Volume VIII, Number 3 (Fall 2024): 209–24.

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