Politics & Policy

Don’t Nuke the Filibuster

Senator Mitch McConnell, then Minority Leader, speaks during a session in 2013. (Photo: U.S. Senate TV/Reuters)
Ending it would be bad for the nation’s unity.

Now that Republicans control both houses of Congress and the presidency, some on the right, such as Wisconsin governor Scott Walker, argue that they should invoke the “nuclear option” to get rid of the filibuster entirely, for legislation as well as for nominations. Pundits and politicians alike have pushed back against this proposal. Erick Erickson has laid out some of the reasons why conservatives should seek to keep the filibuster for legislation, and in the Senate, Orrin Hatch and Lindsey Graham have expressed opposition to killing the filibuster. Beyond the filibuster itself, there are reasons why Republicans should continue to resist the temptation to go nuclear.

While there may be a case for a reform of the filibuster, the argument for blowing it up via the nuclear option is far less compelling. The use of the nuclear option means gutting Senate Rule XXII, which stipulates that changing Senate rules requires a two-thirds majority. According to the precedent of the nuclear option, a bare majority of 51 senators can not only push through a piece of legislation (in the absence of a filibuster); it can also do whatever it wants with Senate rules, which are currently structured to give comparative autonomy to individual senators. Current Senate rules weaken the power of the majority leader, because often he will need some assistance from members of the minority in order to pass legislation. Compared with the House, the Senate legislative process is often decentralized.

The nuclear option would lead to a situation where senators — the legislative voices of their states — would lose their independence. The challenges facing the nation are complex indeed, and the nation needs a multiplicity of voices and brains working to solve those problems. In recent years, the Senate has benefited from a variety of reformers — from Jeff Sessions to Mike Lee to Marco Rubio — working to propose solutions to both new and old problems. Detonating the nuclear option would help centralize and stiffen the Senate when the moment calls for decentralization and flexibility.

The results of last Tuesday remind us that seemingly permanent majorities can be anything but. Both the Republican and the Democratic parties will face some time in the electoral wilderness in the years ahead, and the minority protections of the Senate should be there for both sides. The Obama years have led the Democratic party into one political box canyon after the next, and Senate Democrats may yet come to rue Harry Reid’s use of the nuclear option for executive appointees (because of Senator Reid’s decision, removing the filibuster for Supreme Court nominees would be far less of a shock to the congressional system than removing it for legislation).

The results of last Tuesday remind us that seemingly permanent majorities can be anything but.

In conducting public debates about the nuclear option, Republicans should remember another thing: It seems to have almost no chance of succeeding, at least for the legislative filibuster. If the Republicans will have 52 votes in the Senate (assuming the GOP holds Louisiana) and Senators Graham and Hatch are opposed, a single defection by any additional Republican will leave the party short of a majority (Vice President Mike Pence could cast a tie-breaking vote in the case of a 50–50 split). Since other Republicans have spoken in favor of the filibuster in the past, it seems likely that the party has well under 50 votes on behalf of the nuclear option. This suggests that the only way to detonate the nuclear option would be to find Democrats to support it, a highly improbable proposition. And even if some Democrats are willing to do away with the filibuster, nuclear-option-inclined Republicans would be better off reaching across the aisle to make a rules change according to the standing rules of the Senate.

If the nuclear option is likely to fail, prominent Republicans would probably be better off not talking about it at all. Democrats used Republican threats to go nuclear in 2005 when they were called upon to defend the Democratic nuclear effort in 2013. Every Republican statement now on behalf of going nuclear on the legislative filibuster will give more political cover and political incentive to Democrats to go nuclear when they next become the majority.

#related#The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation. Cooperative norms have broken down in the federal government in recent years, but wiping away the filibuster could worsen partisan polarization. However they come down on the filibuster and the nuclear option (topics about which reasonable people can disagree), Republicans should keep their eyes on bigger visions and policy goals and not succumb to reflexively adversarian partisanship. Harry Reid’s legacy in Senate leadership will likely be one of partisan nihilism — the man who assailed the tradition of consensus and who shruggingly replied, “Romney didn’t win, did he?” to the accusation that he had lied about Mitt Romney’s not paying taxes. The next Congress should do — and our republic certainly deserves — better than that.

— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm.


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