By Richard A. Arenberg | Saturday, 16 Sep 2017
"END NOW!" shouts President Donald Trump's most recent twitter tirade against the filibuster in the Senate. The case he presents is that "With the ridiculous Filibuster Rule in the Senate, Republicans need 60 votes to pass legislation, rather than 51. Can't get votes…"
Trump has repeatedly harangued the Senate on Twitter. Back in May, he wrote, "The U.S. Senate should switch to 51 votes, immediately, and get Healthcare and TAX CUTS approved, fast and easy."
In August, he declared on Twitter, "If Republican Senate doesn't get rid of the Filibuster Rule & go to a simple majority, which the Dems would do, they are just wasting time!"
Just last week, by tweet, he specifically addressed the Republicans in the Senate, "I've been hearing about Repeal & Replace for 7 years, didn't happen! Even worse, the Senate Filibuster Rule will.... never allow the Republicans to pass even great legislation. 8 Dems control - will rarely get 60 (vs. 51) votes. It is a Repub Death Wish!"
Even as he makes fledgling overtures on immigration and tax reform to the congressional Democrats, the president appears to believe that if only the GOP majority in the Senate would steamroll the minority in that body, twist the Senate rules out of shape, and legislate without any need for negotiation with the Democrats, great things would happen.
Trump's insistence, however, seems to be making the squashing of the "ridiculous" filibuster rule less likely, not more.
Senate Republicans led by Mitch McConnell have shown no enthusiasm for the idea. Majority Leader McConnell has pointedly told the media, "There's not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one."
If the interests of Republicans and their policy objectives are so clear, why resist a measure which would please a Republican president, avoid the GOP "death wish," and make it easier to overrun minority views? Why keep the filibuster?
More than 200 years ago, in 1793, John Adams wrote, "Mankind will in time discover, that unbridled majorities are as tyrannical and cruel as unlimited despots." This captures the argument for preserving the role of the Senate in protecting legislative minorities.
Democracy is something more than simply majority rule. Majority rule must be balanced by the rights of minorities. Unlike the House of Representatives where majorities can legislate without consideration for the minority, in the Senate, the minority can almost always have some influence on legislative outcomes.
This is important not only because it protects against overzealous majorities, but it fosters negotiation and encourages compromise. This matters most when the president's party controls both the House and the Senate as it does now.
At the heart of the Senate's unique place in our government are two critical factors. The Senate is characterized by unlimited debate and unfettered amendments. The principal tool for protecting these rights is the filibuster.
Under the Senate rules, a filibuster can only be cut off by cloture. This requires 60 votes (three-fifths of all senators "duly chosen and sworn"). This means that in order to pass most matters of consequence, a part of the minority must be willing to work with the majority.
It is this supermajority requirement which makes the filibuster such a potent driver of compromise. All senators know for their legislative proposals to succeed, they must seek support from colleagues on the other side of the aisle. This is in the DNA of the Senate.
In recent years, first one party and then the other have abused the filibuster. Minorities have seized on the filibuster and other procedures and used them for purposes of obstruction. This naturally frustrates majorities.
Too often, the majority rather than working with the minority have sought to freeze them out. One example is the misuse of the reconciliation rules under the Budget Act to circumvent the filibuster in an effort to accomplish major legislative objectives like the repeal of Obamacare, (so far unsuccessfully.)
Senators through most of the Senate's history have recognized the potential for abuse of the filibuster to lead to efforts to eviscerate it. Senators who value the filibuster have protected the rule for more than a century. Without it, the majority in the Senate will do what majorities do: take full control. The Senate would become another House of Representatives.
Nonetheless, the filibuster is threatened.
In 2013, Democrats, led by former Majority Leader Harry Reid, D-NV, used a parliamentary ploy, the controversial "nuclear option," to twist the rules and permit cloture to be invoked by a simple majority on presidential nominations. At the time Supreme Court nominations were exempted.
Earlier this year, after blocking President Obama's nominee to the Supreme Court for nearly a year, Republican Majority Leader McConnell rolled out the Reid precedent and extended it to Supreme Court nominations. This permitted Republicans to end the Democrats filibuster and confirm Neil Gorsuch to the Court.
Use of the nuclear option has freed future presidents with a majority in the Senate to select partisan and ideologically pure nominees and to ignore the views of the minority. I believe that this will greatly and permanently politicize the Supreme Court.
Perhaps the greater damage done by these actions is the danger that the legislative filibuster has been put on a slippery slope.
Most recent presidents have disliked the filibuster rule, even those who previously defended it, like Barrack Obama, when he was in the Senate and Trump who in 2013 tweeted, "Thomas Jefferson wrote the Senate filibuster rule. Harry Reid & Obama killed it yesterday. Rule was in effect for over 200 years."
Presidents simply want to see their legislative agenda adopted and it's easier if they can rely on their own party alone. No Republicans voted for Obamacare in the Senate and no Democrats voted to repeal it. This is hardly a formula for wise public policy.
President Trump wants the Senate to twist its rules and precedents in order to make it easier for him to accomplish what he wants. The Senate, however, historically dislikes being told how to write its own rules. The Constitution, in Article I Section 5, gives that power to the Senate itself. As Majority Leader McConnell has said, "There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar." Earlier this year, a bipartisan group of 61 senators wrote to the leadership opposing further change to the filibuster.
It was Supreme Court Justice Louis Brandeis who wrote, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding." The Trump tweets probably make destruction of the filibuster less likely because his bombastic demands, his unpredictability, and the seemingly constant chaotic atmosphere that he creates may reinforce the conviction of many Republican senators that the virtues of the filibuster are worth preserving.
Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate." He is a visiting lecturer of political science, and international and public affairs, at Brown University. His work has appeared in The New York Times, The Washington Post and The Boston Globe. Follow him on Twitter@richarenberg.
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