President Trump periodically registers his totally correct opinion that the legislative filibuster is a stupid relic that the Senate should abolish. Senate Republicans continue to oppose him out of the highly rational belief that abolishing the filibuster would one day open the door to progressive legislation they oppose. But the real news in this story about Trump’s fruitless argument against the filibuster is that, according to Senate Republicans, Minority Leader Charles Schumer has promised Republicans not to change the filibuster if Democrats gain power.
“According to a senior GOP senator who spoke on condition of anonymity,” reports Politico, “Schumer has privately reassured Republican senators in recent weeks that he would not change the rules and is committed to keeping the filibuster.” What this means is that the decision to bottle up the agenda of the next Democratic president is being made right now, in private, in a secret deal between Schumer and Senate Republicans.
Contrary to popular belief, the supermajority requirement to pass legislation is not in the Constitution, and indeed was considered and consciously rejected by its framers. It evolved by accident and has changed many times. In 1917, the threshold to defeat a filibuster was set at two-thirds, and in 1975 reduced to 60 percent. In 2013, the Senate eliminated the filibuster on Executive branch appointments and judges below the Supreme Court, then last year it eliminated the filibuster for the Supreme Court, too.
I have yet to see anybody construct a good-government defense of the current arrangement of a supermajority threshold for legislation, regular majority for appointments. There are at least plausible arguments one could make for (1) a supermajority requirement for everything, (2) a majority requirement for everything, or (3) a majority requirement for legislation and a supermajority requirement for a judgeship. (After all, legislation can be undone, but a judicial appointment is forever.)
The status quo, in which you need a supermajority to pass routine legislation, while being able to give judges a lifetime appointment with a mere majority, has no public purpose whatsoever. Nobody would ever consciously design a system where you can seat a judge to the Supreme Court, with unlimited authority, with 50 senators, while needing 60 senators just to fund annual government appropriations.
So why does it exist? Because it stands to the advantage of Republicans, who currently hold the Senate majority.
That might sound strange, given that the legislative filibuster is a weapon that is momentarily useful for Democrats. But the reality is that the filibuster isn’t stopping very much right now. Republicans have only 51 senators, one of whom is incapacitated, and several of whom are in various states of rebellion from their party’s president. What’s more, the party has few domestic policy ideas it would pass if it had the chance. The crusade to repeal and replace Obamacare failed mainly because Republicans couldn’t design a practical alternative. What Republican senators could agree on eventually wound up in a budget-reconciliation bill that failed because it only got 49 votes.
This, by the way, points to another irrational aspect of the status quo: Budget reconciliation is a loophole that allows certain kinds of legislation to pass with a majority, but only bills related to budget policy, a restriction that severely impairs Congress’s ability to design well-functioning laws. Last year, Republicans came within a hair of defunding with 50 votes — a law Democrats had to find 60 votes to create. The status quo makes complicated reforms difficult to build and easy to wreck.
So the filibuster is a momentary annoyance for the Republicans. No doubt Republicans are constantly telling Trump that the filibuster is stopping many of his kooky ideas from being passed into law. But the truth is that very few of the proposals Trump imagines could pass if the filibuster didn’t exist would actually get 50 votes. It’s a convenient shield for Republican senators to steer clear of bills they would rather not have to debate in public.
The vast majority of the conservative agenda can be carried out without securing 60 Senate votes. Tax cuts — by orders of magnitude the right’s highest domestic priority — can be passed with 50 votes through reconciliation. So can spending cuts, except to Social Security. Republicans can’t legislate weaker regulation, but they don’t have much stomach to vote for rules letting coal companies dump pollutants into the air, or denying overtime pay to workers. They are much happier undermining these rules bureaucratically, below the radar and without exposing elected officials to accountability for it. And of course judges can be seated with 50 votes, and those judges have increasingly used activist rulings to enact policy goals conservatives don’t have the votes to pass in Congress.
Republicans prefer a system with imposing barriers to passing legislation because, over the long run, they have less workable legislation to pass. The Bush and Trump administrations alike have exposed the bankruptcy of conservative-movement dogma as a practical governing blueprint. The Republicans are like a putrid football team with a moribund offense, which would naturally prefer to play all its games in a mud pit.
Why, though, would Democrats go along with this? Because they hope a supermajority requirement will result in bipartisan cooperation? That is is a forlorn hope. Republicans have greeted every major legislative initiative by a Democratic president with total opposition. This was true when Barack Obama passed a fiscal stimulus at the outset of the biggest economic calamity since the Great Depression, or when he tried to pass Mitt Romney’s health-care plan, or the cap-and-trade program John McCain had endorsed. It was likewise true when Bill Clinton eschewed social activism to focus on deficit reduction in 1993. The modern Republican Party is constructed to hysterically attack every Democratic policy initiative, however moderate, as the final extinction of human freedom on Earth.
Schumer is surely not alone among Democrats in his fondness for retaining the Senate’s antiquated supermajority requirement. Some members of his caucus probably worry about the optics of eliminating it, which would surely open Democrats to a few days of scolding from Morning Joe and the Sunday talk shows.
But Democrats are deluding themselves if they think that, during the next Democratic administration, they can keep it in place without provoking mass indignation from their base. The filibuster has already been pared back twice in the last five years. Everybody knows the rules can be changed. When McConnell eliminated the filibuster for Supreme Court nominations, the news barely registered. It isn’t a “nuclear option” any more.
Democratic voters aren’t going to accept the party’s explanation that their agenda is bottled up by a handicap they could discard any time they want. They’re much better off announcing their intention to eliminate the legislative filibuster — or perhaps turn it into an old-fashioned talkathon rather than a routine supermajority requirement — in advance, rather than after months of debate that elevates its importance.
Given a history in which Senate Republicans have broken precedent repeatedly, most prominently by stealing a Supreme Court seat from Obama, liberals have an easy temptation to blame their own party for actions taken by the other side. It’s usually just frustration. In the case of the filibuster, Democrats really do have the power in their hands, and truly have nobody else to blame if they get suckered into handicapping themselves.
Trump’s presidency has highlighted the importance of safeguarding democratic norms. But the legislative filibuster isn’t a democratic norm. It’s an anti-democratic norm. It deserves to die.