Trump Could Probably Kill the Legislative Filibuster

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Filibusted. Photo: Mark Wilson/Getty Images

On Friday, President Trump told Fox News that America has an “archaic” political system that makes it difficult to “get things done” — and so, “maybe, at some point, we’re going to have to take those rules on.”

These remarks kicked off another round in the spirited debate over whether our president is best understood as a nascent authoritarian or whiny diva. Was Trump floating the abolition of Madisonian democracy? Or was he merely seeking to explain why his dearth of legislative accomplishments is someone else’s fault?

But Trump’s rant can be read in a third, more charitable light: as the cogent argument of a slow learner who finally understands the significance of the legislative filibuster. Note the president’s emphasis on the Senate rules:

We don’t have a lot of closers in politics, and I understand why. It’s a very rough system. It’s — it’s an archaic system.

You look at the rules of the Senate, even the rules of the House — but the rules of the Senate and some of the things you have to go through, it’s — it’s really a bad thing for the country, in my opinion. They’re archaic rules. And maybe at some point we’re going to have to take those rules on, because, for the good of the nation, things are going to have to be different. You can’t go through a process like this. It’s not fair. It forces you to make bad decisions. I mean, you’re really forced into doing things that you would normally not do except for these archaic rules.

The Senate does, in fact, have archaic rules that Trump could “take on” without undermining the foundations of our republic. The filibuster — that special power of every senator to force a 60-vote threshold on legislation — is mandated exactly nowhere in our Constitution. Quite the contrary: The filibuster plainly contravenes the intentions of our nation’s founding document.

The framers did consider including a supermajority requirement for judicial appointments and lawmaking, but decided against it. Instead, they concluded that a supermajority should only be required for the impeachment of presidents; expulsion of senators; ratification of treaties; overriding of a presidential veto; and amending the Constitution. The founders may have been aristocrats who were distrustful of mass democracy, but even they realized that the system they’d designed was already chock-full of checks on majoritarian rule without a 60-vote threshold for bills in the Senate.

Thus, Trump does not need to break the Constitution to kill the legislative filibuster; he just needs to break the will of 50 Republican senators. And if the president were a bit less incompetent he could probably do so.

The filibuster casts a shadow over Trump’s entire agenda. The GOP’s regressive platform is too broadly unpopular to attract eight Democratic votes in the Senate. And the president is far too poor a deal maker to court Team Blue’s support through horse trading. (Over the past 48 hours, Trump has proven himself incapable of locating the bipartisan consensus positions on why the Civil War happened, and whether the extrajudicial murder of drug addicts is a commendable public health policy).

And so, every story about Obamacare repeal or the president’s tax “plan” must include a primer on parliamentary procedure: To avoid a Democratic filibuster, Republicans must push their agenda through reconciliation, a process that can’t be used for regulatory changes but only budgetary ones — and then, only for budget bills that do not raise the deficit after ten years.

These arcane rules forced the GOP to break up its health-care bill into three pieces (the latter two comprised of regulatory reforms that are even more un-passable than Trumpcare), and to navigate a political minefield just to pass permanent tax cuts for the rich.

Republican lawmakers have sacrificed a lot of time, energy, and ambitions in their attempts to comply with the Senate’s strictures. The president’s inability to overcome said strictures is a source of constant anxiety for the White House, and frustration for the conservative base, as both pine for overdue legislative victories.

And yet, 50 Senate Republicans could lift these barriers in a matter of minutes, if they wanted to — a point they amply demonstrated, just weeks ago, when they abolished the filibuster for Supreme Court nominees in order to put Neil Gorsuch on the bench.

Those senators have compelling reasons not to take the nuclear option to end all nuclear options (or, at least, to end all nuclear options besides actual nuclear options). For one thing, the legislative filibuster increases the power of individual senators. For another, senators tend to have special reverence for the institutions of their fancy, exclusive club. Plus, the filibuster allows the caucus’s moderates to let Democratic obstruction save them from a slew of difficult votes.

But, most substantively, the filibuster provides conservatives with a structural advantage: The primary obstacle to dismantling Social Security, Medicare, and even Obamacare, isn’t the filibuster, but popular opinion — once broadly beneficial welfare programs are enacted, they’re very difficult to repeal. Thus, any institution that makes it more challenging to enact new welfare programs in the first place is good for the right (even if said institution makes it a bit harder to repeal the old ones). Further, under our current budget-reconciliation system, conservatives only need a simple majority to cut spending or taxes (temporarily), while progressives need 60 votes for any significant expansion of the welfare state.

But none of that would concern Donald Trump. The president has no deep investment in the right’s long-term project, much less in John McCain’s self-aggrandizing attachment to the Senate’s institutions. By all appearances, Trump has little-to-no idea what his own health-care bill actually does; he just knows that the bill’s failure is an affront to his brand as a deal maker and winner. If the president’s top legislative priority is to sign as much legislation as possible, then he should have the filibuster in his crosshairs.

And if he knew how to effectively weaponize his bully pulpit, he’d have a good chance of landing the kill-shot. The conservative base finds the concept of putting institutional norms above short-term partisan gain so distasteful it demanded Republicans hold the government hostage out of the quixotic hope that such a move would force Barack Obama to repeal his own signature achievement. If Donald Trump and Rush Limbaugh alerted the GOP base to the fact that Senate Republicans have decided to make the Democratic Party more powerful, and the president’s agenda more difficult to pass — out of reverence for a constitutionally dubious custom of their elite club — the chamber’s institutuonalists would quickly find themselves in an untenable position. It is very hard to argue that Obamacare is a calamity and the tax code is a job-killing mess — but upholding the norms of the Senate must take precedence over fixing either of those problems.

At the very least, Trump should be able to shoot a few more loopholes into the filibuster. If he doesn’t, it won’t be because of any newfound respect for the rules he inherited, as the president’s Fox News interview makes clear. Rather, if Trump resigns himself to operating within our “archaic system,” it will be because he’s simply too low-energy to do otherwise.

Trump Could Probably Kill the Legislative Filibuster