Unintended Consequences of Killing the Filibuster
Fifteen years ago, then-Sen. Barrack Obama stood on the Senate floor and defended the filibuster. He asserted that the effort to eliminate it was “more about power than about fairness.” He proclaimed proponents of changing the rule did so “because they can get away with it rather than because they know it is good for our democracy.”
Getty Images via The Hill
In that 2005 debate, Obama declared, “What (the American people) don't expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.”
At that time Obama understood that the solution to gridlock, the cure for the abusive obstruction is not to embrace the expedient of one-party control.
Eliminating the filibuster would not end gridlock. It would not reduce extreme partisan polarization. In fact, it would exacerbate it.
In the eulogy he delivered at the funeral of Rep. John Lewis (D-Ga.), former President Obama asserted that if all it takes to adopt the progressive agenda is “eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do.”
Jim Crow relic? If it were a Jim Crow relic, how could eliminating it be “more about power than about fairness?” How could ending the filibuster not be “good for our democracy?”
The abuse of the filibuster in the 1950s and 1960s for an immoral purpose — blocking civil rights and social justice — was clearly evil. However, that does not mean that the procedure used was itself evil. The fact that the Southern Democrats used the Senate rules to carry out their evil intent does not make the rules guilty.
I admire Barack Obama. I wholeheartedly agree with him on the agenda he cited in the eulogy. Among other things, Congress should revitalize the Voting Rights Act, provide for automatic registration and restoration of voting rights to former inmates.
However, as he stated in that 2005 speech, “If the right of free and open debate is taken away from the minority party and the millions of Americans who ask [the Senate minority] to be their voice, I fear the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything."
The threat to the filibuster is rising again because Democratic progressives, now bullish about winning the presidency and the Senate in 2020, are already promoting its elimination as the only route for an incoming President Biden to enact his agenda. It is argued even if Democrats win, the 60-vote requirement to end debate would be used to prohibit the passage of progressive laws.
The danger lies in permitting the ends to justify the means. In 1793, John Adams warned, “Mankind will in time discover, that unbridled majorities are as tyrannical and cruel as unlimited despots.”
It's a profound mistake to mount a short-term power grab ignoring the unintended consequences. The use of a newly elected narrow majority to steamroll the minority would be extremely short-sighted, even if initially successful.
We have seen such consequences as President Trump and Majority Leader Mitch McConnell have been able to use the absence of the filibuster (eviscerated by Democrats in 2013) on judicial nominations to largely ignore the minority and reshape the federal courts for years to come. The Senate has confirmed 202 Trump federal court nominations, 53 to the critical circuit courts. This is the fastest pace in decades.
The elimination of the legislative filibuster could yield even more draconian unintended consequences when, as it inevitably will, control swings back to the Republicans. Without the filibuster, Republicans could enact their entire legislative agenda, suppressing the vote, cracking down on immigration, codifying Trump-era executive actions, and much more. The federal budget and taxation would be completely controlled by the majority without meaningful minority input. We have seen such draconian lawmaking in many states where the governorship and the legislature is controlled by the same party.
Control could veer back and forth between the parties. George Washington warned, “The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.”
How then should the majority party in the Senate deal with an obstructive minority?
One solution is to generate political pressure on an obstructive minority. In the end, that is what got the 1964 Civil Rights Act and the 1965 Voting Right Act passed. Opposition was overcome to generate bipartisan super-majorities to pass Social Security, Medicare, the Clean Air Act, the Clean Water Act, Medicare Rx Drugs, Alaska Lands Act, emergency disaster relief and much more.
Thomas Jefferson wrote, “Great innovations should not be forced on a slender majority — or enacted without broad support.”
Richard A. Arenberg is Director of the Taubman Institute for American Politics and Policy and a visiting professor at Brown University. He is a former senior aide to Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years. He is the author of the award-winning "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress" and co-author of “Defending the Filibuster: The Soul of the Senate.” You can follow him on Twitter @richarenberg