It’s easier to destroy things than to build them
When we think of the filibuster, we think of Jimmy Stewart’s heroic stand in Mr. Smith Goes To Washington. One man against the system, literally talking until he collapses. It’s a feel-good fluff movie, but it made the filibuster iconic.
Real-life no longer works that way. Filibuster rules evolved in such a way that both Republicans and Democrats use it as a routine tool of obstruction. Today’s Democrats filibuster coronavirus relief and criminal justice reform on the theory that they benefit politically from nothing happening more than from a compromise, but Republicans have used it in the past as well, for example forcing the Affordable Care Act to be passed through budget legislation gymnastics rather than through normal business.
Though fact-checkers debunked Obama’s one-time claim that Republicans filibustered 500 pieces of legislation, the Republicans probably held up 50 or 60 during his tenure. In either case, the American people usually end up suffering from the lack of ability to compromise.
The filibuster gums up the works; only non-controversial legislation passes quickly. Consequential legislation requires broad support, perfect political timing, or both. It’s hard for the country to do big things. Filibuster critics see this as a negative.
In the end, though, Democrats may have more to lose from ending the filibuster than from continuing it. Sure, elimination would allow them to get some big, important legislation passed. It would also allow those big things, which take years to implement, to be wantonly destroyed when the wheel turns.
History of the filibuster
In some ways, the Senate created the filibuster by accident. The House rulebook contains a “previous question” provision, evolving over the years to facilitate ending debate. The Senate eliminated the same rule in 1806 without much thought or deliberation.
In essence, a loophole allowed one or a small group of senators to hold the floor indefinitely. President Woodrow Wilson mustered political pressure against the Senate in 1917, after a 23-day filibuster against arming merchant ships, forcing the Senate to invent cloture. This allowed ending debate with a two-thirds majority of those present.
A bi-partisan rules compromise in 1970 sowed the seeds of the current gridlock. The Senate introduced a system where multiple pieces of legislation could be pending at once, and the Senate Majority Leader could schedule and apportion debate among them. In 1975 the cloture threshold went from two-thirds of senators present to three-fifths of sworn senators.
Now, the minority no longer needed to physically hold the floor. Instead, the Senate instituted a virtual filibuster. This removed the pain on the minority filibustering and removed the pain of the majority that wanted to move on to other things. The incentives forcing swift compromise disappeared. Ironically, a rule change meant to increase efficiency ended up creating a de facto 60-vote requirement for all legislation.
During the presidency of George W. Bush, Democrats filibustered a small number of judicial nominees; Republicans threatened the ‘nuclear option’ of eliminating filibusters on judges. in 2012, under President Obama, the Democrats used the nuclear option after Republicans filibustered a larger number of nominees. Senate Majority Leader Mitch McConnell escalated again in 2017, removing the filibuster for Supreme Court nominee Neil Gorsuch.
In 2013, then-Senate Minority Leader McConnell famously warned:
“You’ll regret this, and you may regret this a lot sooner than you think.”
After Trump’s breakneck remaking of the judiciary, he was probably right.
The wages of elimination
If Joe Biden wins the presidency, then likely the Democrats will retain the House and win the Senate. Progressives like Bernie Sanders, Andrew Yang, and Elizabeth Warren support the idea. Media allies like The Atlantic and The New Yorker agree.
Eliminating the legislative filibuster sounds good. Democrats would be able to pass sweeping reforms. The United States could see increased funding for the Affordable Care Act, a ban on so-called ‘assault weapons,’ an aggressive Green New Deal, citizenship for everyone in the country illegally, forgiving student loans, plus massive bailouts of states and cities that haven’t been able to manage their budgets and obligations.
Unfortunately for them, there likelihood that the House and Senate will remain in Democratic hands is about zero. The massive social changes will engender a red wave. As in 1994 and 2010, overreach on unpopular programs may drive an electoral reckoning allowing Republicans to take the House and Senate. Then, whether in 2024 or 2028, a Republican will again be elected president.
Sound farfetched? The last FOUR presidents (Clinton, Bush, Obama, and Trump) began their first term with their party in control of both houses of Congress. Why wouldn’t the next Democrat and the next Republican start the same way?
The destruction imperative
Liberals see government as an effective tool to do good in the world; they build programs and processes in the public sector to do that good. Programs and solutions, however, take time.
Even after Congress passes enabling legislation, for example, agency rule-making can take years. Rules pass through stages requiring regulatory analysis, public comment, publishing, and phase-in dates. The Affordable Care Act, passed in 2010, had provisions not implemented until 2018.
“Government is not the solution to our problem, government is the problem.” — Ronald Reagan
In the meantime, Congress can flick away previous legislation and rules at will. Some laws, like mass amnesty for illegal immigrants or statehood for Washington D.C. and Puerto Rico, would be impossible to unwind. Trillions of dollars transferred to favored groups would remain transferred.
Anything built, however, could be instantly unbuilt. Federal funding for Planned Parenthood would go away, and probably funding for the National Endowment for the Arts. Climate legislation will have decade long implementation periods, and these will likewise vanish in a puff of smoke. When the wheel turns again, rulemaking and implementation will begin all over again.
Is there a better way?
Perhaps instead of eliminating the filibuster, the Senate should change the rules to make filibusters extraordinary again, rather than routine. One way to do this would be to eliminate the two-track system and force filibusters to hold the floor. Perhaps there could even be half a loaf. Rules could mandate at least four hours of debate on each pending matter, rather than just abandoning them.
Would Democrats continue to filibuster police reform over qualified immunity if they had to stand and talk every day and no other work could get done? Would Democrats filibuster the coronavirus aid packages for not being big enough if they had to hold the floor?
If these bills were to advance, the Republican Senate would pass them. The House and Senate would negotiate compromises, and their respective members would go on record by voting one way or another.
Both parties will eventually come to regret the full elimination of the filibuster. Every few years, when the parties align, the country will lurch in one direction or the other. The current system ensures that only broadly acceptable legislation passes, but takes away too much pain and allows permanent filibuster without any incentive to compromise.
Whatever the solution, the country should preserve the ability of the minority to strenuously object to particular legislation while ensuring facilitating compromise on the rest.
Brian E. Wish works as a quality engineer in the aerospace industry. He has spent 29 years active and reserve in the US Air Force, where he holds the rank of Colonel. He has a bachelor’s from the US Air Force Academy, a master’s from Bowie State, and a Ph.D. in Public and Urban Administration from UT Arlington. The opinions expressed here are his own. Learn more at brianewish.com.