Eliminating the legislative filibuster is growing more likely

Release date:
Apr 12, 2019

When Republicans confirmed Neil Gorsuch to the Supreme Court by doing away with the legislative filibuster, critics of the move warned it would harm the institutional integrity of the U.S. Senate.

“The Senate has been damaged to a degree that it hasn’t been in its history,” Sen. John McCain, R-Ariz., told Yahoo News at the time. “Over in the House of Representatives, when you’re in the majority, you control everything. We are now headed in that direction. And that is not democracy.”

Now some Democratic presidential candidates are calling to eliminate the filibuster for legislation, a measure that would allow the Senate to pass laws with a simple 51-vote majority, rather than the current requirement of a 60-vote supermajority. The tepid resistance from opponents and the lack of general outcry is an indication that such a move is possible, even likely, in the near future.

“The political cost of using the ‘nuclear option’ is going down. A party does it and there’s not that much explosive pushback. We expect the minority to burn up every bridge in opposition, but they don’t. It’s making it more plausible that a future majority would go all the way and eliminate the legislative filibuster,” Sarah Binder, a senior fellow at the Brookings Institution, told Yahoo News.

Sen. Elizabeth Warren, D-Mass., last weekend became the second major Democratic 2020 candidate to argue in favor of abolishing the filibuster, though she placed her comments in the context of future obstruction by Senate Republicans.

“When the Democrats have the White House again, if Mitch McConnell tries to do what he did to President Obama and put small-minded partisanship ahead of solving the massive problems in this country, then we should get rid of the filibuster,” she said.

Former South Bend Mayor Pete Buttigieg, who burst onto the national scene recently, has advocated for a number of procedural reforms, including scrapping the filibuster. Washington Gov. Jay Inslee, another less prominent 2020 candidate, also called for eliminating the filibuster.

However, Democratic field is far from united on this issue. Last weekend, Sen. Bernie Sanders explained his reasons for wanting to keep the filibuster.

“I think you have to protect minority rights. I don’t think you can just simply shove everything through. There’s an argument for that, by the way, but that’s not where I am right now,” Sanders — who has supported eliminating the filibuster in the past — told The Huffington Post. Sanders also said that because President Trump has repeatedly called for eliminating the legislative filibuster, that’s another reason to be “a little bit nervous” about the idea.

Bernie Sanders (Photo: Anna Moneymaker/Bloomberg via Getty Images)

The concern is that strict majority rule would weaken the Senate’s role as a place for deliberation and compromise, by allowing the party in control to do whatever it wanted without consulting the minority. Sanders is not the only Democratic presidential candidate to oppose filibuster reform. Sen. Cory Booker of New Jersey, Sen. Amy Klobuchar of Minnesota, Sen. Kirsten Gillibrand of New York, and Sen. Kamala Harris of California have all expressed either outright opposition or discomfort with the idea.

New York magazine’s Jonathan Chait wrote that Sanders’s opposition to filibuster reform “may be the single most baffling position any candidate has taken,” because Sanders is generally one of the more progressive candidates in the race but opposition to filibuster reform is thought of as a conservative position.

And in fact the most strenuous objections to filibuster reform have come from conservatives. The Wall Street Journal editorial page framed Warren’s proposal as part of a “procedural radicalism” that is endemic to the Democratic primary. “They want to blow up the Electoral College, pack the Supreme Court, rewrite voting laws and limit political speech, among other startling projects,” the Journal wrote.

And part of Buttigieg’s ability to stand out in a crowded field has been his eager embrace of these changes. Increasingly, it is becoming a mantra among progressive writers and thinkers that any Democrat who talks about what they want to do but not how they plan to do it, is not credible. And filibuster reform is a key part of how they think a Democratic agenda gets implemented.

As to the argument about the Senate’s institutional integrity, Binder and co-author Steven S. Smith argued in their 1997 book “Politics or Principle? Filibustering in the United States Senate” that senators make high-minded arguments about keeping the filibuster but don’t do so sincerely. They appeal to concerns about democracy, but really are motivated their desire to keep the power that the filibuster gives to individual senators, elevating their status and leverage.

“The minority’s rights must be protected … but neither should a vexatious minority be able to thwart the will of the majority and not even permit legislation to come up for a meaningful vote,” Binder wrote in 1997. Twenty-two years ago, she said, the filibuster had “become an epidemic.”

And since then, the use of the tactic to prevent moving to a vote has escalated with each year. Binder says this allows lawmakers to avoid taking hard votes and working on solving hard problems.

“It’s hard to hold lawmakers accountable if they don’t vote,” Binder told Yahoo News. “They never get to the point where they take actual positions.”

And, she said, the Senate will remain distinct from the House due to several factors even without the filibuster, in particular the fact that members have six-year terms rather than two-year terms.

But the worry remains that getting rid of the filibuster would create more instability, politically and economically. Major laws would be passed by one party, but then undone a few years later by the other. The ability to plan long term in business, in the military and elsewhere would be greatly challenged.

“That is a recipe for making our problems worse,” wrote Yuval Levin in National Review. “The filibuster could certainly be made more meaningful and harder to deploy — for instance, by requiring that senators actually fill floor time, as the filibuster was traditionally understood to require.” The ease of filibustering, Levin wrote, has allowed it to become a “pure partisan weapon deployed”

Reforming its use with that purpose in mind would be helpful,” he wrote.

The one thing that most people agree on is that the status quo is neither desirable nor durable.