This year's presidential election may produce an unintended consequence: the jeopardization of the filibuster. In this interview, IU Press author Richard A. Arenberg explains why the filibuster is in trouble, why it's important, and what needs to be done to safeguard this important political tool for future generations. Arenberg's book Defending the Filibuster is available now from IU Press. See the form below for your chance to win one of two copies.
IU Press: How would you describe the state of the filibuster today? What has led to things being this way?
Richard Arenberg: In November of 2013, the then-majority Democrats in the Senate used a controversial parliamentary gimmick to unilaterally reinterpret the filibuster rule by simple majority. By use of the so-called "nuclear option," they established, essentially by fiat, that a simple majority could cut off debate on any executive or juridical branch nomination (with the exception of the Supreme Court).
At the time, I wrote in the New York Times:
"The Senate Republicans, by blatantly and transparently obstructing President Obama’s judicial nominations, have goaded the Democrats into an historic mistake. To reach understandable ends, they have adopted tragically flawed means. By use of the so-called “nuclear option,” Senate Democrats have now established the principle that a simple majority in the Senate can change any rule at any time."
This places the Senate on a slippery slope. I have long argued, for example, that the arbitrary line drawn to exempt the Supreme Court, would last only until the next time that a president saw his/her nominee filibustered by the opposition in the Senate. We may well see this play out in January if the Democrats filibuster President-elect Trump's nominee.
For Democrats, if the current majority Republicans use the nuclear option to confirm Trump's pick, it will be the bitter fruit of the seeds they sowed in 2013.
IUP: Why is the filibuster important to American government?
RA: Because under the Senate rules, it takes a supermajority 60 votes to cut off a filibuster, the existence of the filibuster in the Senate serves to require the majority to work with a least a portion of the minority to get almost anything of consequence done.
In recent years, because of the intense increasingly polarized hyper-partisanship in the Senate, the rule has been frequently abused. As we argued in Defending the Filibuster: The Soul of the Senate, the solution is not to rewire the Senate rules. Eliminating the filibuster, in fact, would exacerbate the polarization in the body.
IUP: What needs to be done to restore the filibuster to full strength? Is there any reason that the filibuster shouldn't be strengthened again?
RA: Unfortunately, majorities seldom give back power. However, the rule was not changed. Rule XXII continues to state that it takes 60 votes to end debate and cut off a filibuster even for nominations. The interpretation of that rule could be be restored by the majority. Currently "3/5 duly elected and sworn" (in other words 60) is interpreted by the Senate precedent to mean "a simple majority (51 or fewer if not all senators vote). You needn't be a math wiz or an English major to see this is ridiculous.
IUP: What would you predict as the immediate and long term future of the filibuster?
RA: In the short run, the future of the filibuster as it applies to the Supreme Court may be sorely tested. President Trump, in his first few days in office, will nominate someone to the Court to fill the Scalia seat.
Democrats are already rightly agitated because the Republicans have denied President Obama's nominee, Merrick Garland, even a committee hearing. This is totally unprecedented. As a result, many will feel that the seat was stolen away and that the Trump nominee is therefore not legitimate.
If Trump also puts forward someone who is an ideologue, outside of the judicial mainstream, Democrats will filibuster.
Depending on how unified and determined the Democratic filibuster under these circumstances turns out to be, it may unfortunately very well trigger the use of the precedent of the "nuclear option" so misguidedly created by the Democrats.
If this occurs, there is no going back.
Use of the nuclear option would be regrettable because it would signal to future presidents that with a majority in the Senate, they would be free to select partisan and ideologically pure nominees and ignore the views of the minority. This would greatly and permanently politicize the Supreme Court.
In the longer term, there is danger that if the Democrats fight aspects of the Trump agenda using effective filibusters, pressure will build on the GOP leadership to use the nuclear option even more broadly to squash the filibuster entirely, including on all legislative matters. I believe that senior members of the party will be reluctant to go that far, but, as the Albany Herald put it in an editorial this week, "what was once unthinkable has become thinkable, and what is thinkable is doable."
This would undermine the foundations of the Senate and leave it functioning like another House of Representatives. This would be a tragic and historic loss.