The coherent case for the Senate filibuster is that it promotes conservatism. If you believe that government is best which governs least, over the long run, a structure that requires supermajority support to enact new laws will slow down the pace of change. It helps the case that the highest priorities for Republican governments — confirming judges and cutting taxes and social spending — can already be done with a majority, while regulations can be defanged through administrative neglect.
But this straightforward case isn’t helpful for filibuster advocates who, after all, need to persuade Democrats to keep the supermajority in place. And so they have developed arguments for the filibuster that appeal to neutral democratic values rather than resting on an explicit preference for conservatism. Typically, they combine some imagined history with a post hoc justification for a system that evolved by mistake.
Mitt Romney’s Washington Post op-ed today defending the filibuster contains all the classic elements of the genre. It’s worth going through his argument point by point to see how utterly bereft of reasoning his case is.
Romney begins with the requisite appeal to history. It is a mark of progress that filibuster enthusiasts have stopped erroneously claiming that the Founders designed the filibuster and have instead settled for merely implying it. Watch the verbal sleight of hand here:
The United States Senate is one of our vital democratic institutions. Since shortly after our nation’s founding, a single senator has been permitted to speak indefinitely, delaying and possibly impairing legislation favored by the majority, even if that senator were in the minority.
“Shortly after our nation’s founding” associates the filibuster with the founding while eliding the inconvenient fact that the Founders considered, and explicitly rejected, a routine supermajority requirement for Congress. “Permitted to speak indefinitely” implies the filibuster allows extended debate, when, in fact, in its modern form, it is primarily used to prevent debate from beginning in the first place. (Have you seen the Senate debating the Democrats’ voting reforms? No, you haven’t.)
Romney goes on to note that the Senate is the only federal body with a supermajority requirement:
The power given to the minority and the resulting requirement for political consensus are among the Senate’s defining features.
Note that in our federal government, empowerment of the minority is established in just one institution: the Senate. The majority decides in the House; the majority decides in the Supreme Court; and the president is a majority of one. Only in the Senate does the minority restrain the power of the majority.
This is true. Indeed, it understates the case. Not only is the filibuster absent in other parts of the federal government, but it’s also absent in any state government. For that matter, there is no routine supermajority in the design of any other democratic government in the world.
This is worth bearing in mind when we arrive at Romney’s next argument: Without a filibuster, policy would veer erratically between extremes:
Consider how different the Senate would be without the filibuster. Whenever one party replaced the other as the majority, tax and spending priorities, safety net programs, national security policy and cultural interests would careen from one extreme to the other, creating uncertainty and unpredictability for families, employers and our partners around the world.
If Romney is correct, then this erratic ping-ponging would plague the 50 state governments and all our democratic peers. You would think some of these states and foreign democracies, hampered by this feature of majority rule, would look enviously at the U.S. federal government and seek to copy its unique supermajority requirement.
Yet I know of no movement to copy the filibuster in any state or foreign government. Perhaps that is because the problem Romney says would occur with a majority-rule system is imaginary. If he has a different explanation, I would like to hear it.
It’s also worth mentioning that Romney erroneously suggests that “tax and spending priorities, safety net programs” are among the policies the filibuster prevents from veering erratically. In fact, Senate rules exempt taxes and spending from the supermajority rule. As a result, when Democrats win power, taxes on the rich and spending on the poor go up, while the reverse happens under Republican administrations. It’s very strange that Romney’s argument relies on the premise that this is a horror the filibuster would prevent.
As filibuster defenses invariably do, Romney’s detours into a reminder that many Democrats have supported the filibuster when Republicans controlled government. It is also true, though he doesn’t mention it, that some Republicans have sought to curtail the filibuster when they had the majority (and Republicans eliminated it for judges). Politicians are hypocrites! This tells you nothing about what the principled position on an issue ought to be.
The current pressure to scale back the filibuster is over election reform. Romney blames Democrats for refusing to consult with Republicans:
The Democrats’ latest justification for eliminating the filibuster is Republicans’ unwillingness to pass partisan election-reform legislation. Democrats have filed these bills numerous times over numerous years, almost always without seeking Republican involvement in drafting them.
It is true that in an ideal world, election reforms would win support among both parties. In fact, Joe Manchin has tried to win Republican support for a stripped-down version of a democracy-protection bill, but he has found no Republican takers.
A second pertinent fact ignored by Romney is that the reason Democrats are trying to pass election protections is that Republican-controlled state governments are cracking down on voting and putting control over the process into the hands of party apparatchiks. Because the filibuster exists only at the federal level, none of these measures have any Democratic support. So Romney’s paean to bipartisanship in election reform really means that Republican majorities in state government have a free hand to pass Trumpian measures to consolidate power over the process, while the Democratic Senate majority can only act with the permission of Trump’s Republican allies.
Romney’s most astonishing claim is that any legislation lacking bipartisan support is inherently bad:
Anytime [sic] legislation is crafted and sponsored exclusively by one party, it is obviously an unserious partisan effort aimed at messaging and energizing that party’s base. Any serious legislative effort is negotiated and sponsored by both parties.
Does Romney actually believe this? When Romney campaigned for president in 2012 on Obamacare repeal and a huge tax cut for the rich that Democrats were never going to support, was he secretly planning to let them veto his central campaign plank?
I have written several close-read analyses of filibuster defenses. The sheer inability of any of these arguments to hold together is striking. If filibuster advocates had any cogent fact-based arguments, their polemics wouldn’t routinely be filled with factual errors and non sequiturs. They consistently make bad arguments because they lack any decent ones.