Why Republicans Shouldn’t Weaken the Filibuster
The Capitol. A new session of Congress began on Tuesday. CreditJonathan Ernst/Reuters
The Supreme Court justice Louis Brandeis wrote, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.” The Senate has historically been the one place in our government where legislative minorities are protected, with rules to check overzealous majorities.
The twin pillars of the body’s uniqueness are unlimited debate and unfettered amendments. The minority can almost always have some influence on legislative outcomes. This has often made the Senate the cradle of compromise.
In the House, by contrast, the majority can, without any consideration for the minority, decide what legislation comes to the floor, what amendments can be offered, the length of debate and when the vote will occur.
Now, with Donald J. Trump about to become president and Republicans controlling both houses of Congress, the Senate minority’s chief tool for blocking legislation and nominations — the filibuster — may be in danger.
Because it takes 60 votes to cut off a filibuster, the Democratic minority could use the tactic to frustrate some of the new president’s agenda. The Republican majority will then have to work with the minority to get almost anything of consequence done.
Democratic opposition could, in turn, prompt the Trump administration and its allies to eviscerate the filibuster. The first effort to do that may come in the next month, after Mr. Trump nominates someone to succeed Antonin Scalia on the Supreme Court. If Democrats attempt to block the nomination, Republicans may move to weaken or eliminate the filibuster.
If they do so, the Democrats will be at least partly to blame for setting the precedent. In November 2013, the Democratic majority unilaterally curtailed the filibuster as it applied to most presidential nominations. They employed a parliamentary gimmick that has been called the “nuclear option,” allowing debate to be cut off on nominations by a simple majority. The nuclear option expressly excluded Supreme Court nominees.
It is often written that the Senate “changed” the filibuster rule. It did nothing of the sort. Democrats voted to interpret the words “three-fifths of the senators duly chosen and sworn” to mean a simple majority. One needn’t be either a math whiz or an English major to see that this was ridiculous.
Beyond that, the drawing of a line between other federal judges and a Supreme Court nomination was not before the Senate. The only thing before the body was a point of order from the majority leader, Harry Reid, stipulating that ending debate under the rules would require only a simple majority. That point of order was denied, but then upheld by the Senate on a party-line vote, with all Republicans voting against it. The actual filibuster rule was never changed.
Democrats used the new precedent repeatedly to confirm nearly 100 judges. The Republicans, after they regained the majority in the 2014 elections, retaliated by essentially shutting down judicial confirmations. When Mr. Trump takes office, about 100 judicial nominations await. By invoking the nuclear option, Republicans can end debate and confirm all of them with a simple majority vote.
But, on Supreme Court nominations, the minority continues to have leverage, and Democrats may try to block Mr. Trump’s nominee with a filibuster. Given how Republicans denied President Obama’s nominee for the Scalia seat, Merrick B. Garland, even a hearing, Democrats may feel justified.
Faced with such a filibuster, Republicans will be sorely tempted to extend the Democrats’ precedent to include Supreme Court nominations. They would be likely to defend the power-grab by pointing to what the opposition did in 2013.
Republicans have bitterly criticized Democrats’ use of the nuclear option. So they should not use it themselves now. And indeed, they don’t need to. They can beat back a filibuster by traditional methods. They can use public opinion to force votes. They can require debate around the clock, adding drama. They can use President Trump’s bully pulpit to focus attention on endangered Democratic senators who must run for re-election in 2018 in states that Mr. Trump won. This will make it difficult for Democrats to sustain the 41 votes necessary to keep a filibuster alive.
It’s important to keep the filibuster. With it, presidents must try to win the minority’s support for nominees. This has helped to keep nominations in the judicial mainstream.
True, because of the hyper-partisanship in the Senate, the filibuster has been abused in recent years. The solution to excessive partisanship, however, is not to rewrite Senate rules. Eliminating the filibuster, in fact, would worsen the polarization.
Most senators over the past 100 years have valued the filibuster. They have sought to protect its existence by using it with restraint. They recognized that abuse could threaten the very existence of the rule. Without it, the majority in the Senate will do what majorities do: take full control. The Senate will become another House of Representatives.
If the Senate is to end gridlock, reduce partisanship and begin to address the nation’s pressing issues, both parties must renew their respect for Senate rules — and the views of the people.