We Will Miss the Filibuster

(James Lawler Duggan/Reuters)
The filibuster is useful, because it is useful in a democracy to be able to say “No” to the people and to their duly elected representatives.

NRPLUS MEMBER ARTICLE T he Democrats are feeling cocky about their chances in November, not only of seeing off Donald J. Trump to whatever awaits him after the presidency but also of entering 2021 with control of both houses of Congress. That means there is a renewed effort at hand to get rid of the filibuster.

The most important legislative reality for Democrats is that majorities do not last forever, but entitlements do. That’s the lesson of the grievously misnamed Affordable Care Act: If you are willing to take a kamikaze run at the issue, you can dig in deep enough in two years that it will take the opposition 20 years to undo what you have done, if it can be dug out at all. Here is something that Democrats under Barack Obama could boast of that Republicans under Donald Trump cannot: They were committed enough to their one big issue that they were willing to trade the majority for the bill. Commitment to an error is a very limited kind of virtue, but there is something to be said for the follow-through.

If the Democrats enjoy a trifecta in November, expect a hard push for aggressive new income-redistribution schemes, probably linked to punitive (which is not to say effective) new environmental regulations, and, on top of that, a court-packing scheme that would convert the federal judiciary into an engine of left-wing policy — permanent, unelected, and unaccountable.

The filibuster has many critics on the right, and they are going to miss it when it is gone.

The original constitutional architecture of these United States was a masterpiece of grace and balance. The framers faced the same problem that has faced many republics in the past: balancing the need for widespread democratic access to political power, which helps to confer legitimacy, with the need for more narrow administration that frustrates and defeats the will of the people when the people have gone mad, as they do from time to time. What they came up with was a mix of democratic and anti-democratic institutions: in the legislative branch, a popularly elected House that serves as the accelerator and an appointed, quasi-aristocratic Senate that serves as the brakes; in the executive, a president who cannot appropriate funds or commit the nation to a treaty but who can veto a piece of legislation, requiring a supermajority to override him — a president who in most situations can say “No” more authoritatively than he can say “Yes”; in the judiciary, a constitution of enumerated powers fortified by a bill of rights that sets core liberal principles beyond the reach of mere majoritarianism. What this produced was a democracy of “one man, one vote” on a short leash.

The filibuster is not a constitutional provision — it is a creation of the Senate, a rule the upper chamber has set for itself. The principle behind the filibuster is the principle of unlimited debate, the belief that any senator has the right to extend the discussion of any issue to whatever point he deems necessary. That principle enabled a procedural maneuver we now call the filibuster, in which a senator kept speaking about an issue not in order to advance the debate but to prevent a vote. (A filibuster is a pirate, and a legislative filibuster was taken to be a kind of legislative hijacking.) On the advice of President Woodrow Wilson, late of Princeton, the Senate adopted a new rule that allowed senators to cut off debate with a supermajority. The current cutoff point is 60 votes.

Senators are no longer always expected to actually speak for hours on end when they engage in a filibuster, though many of them do: Senator Rand Paul, a critic of domestic surveillance measures and national-security excesses, spent 13 hours blocking the confirmation of John Brennan as CIA director. (Ted Cruz had earlier subjected the Senate to 21 hours of Green Eggs and Ham and other readings. Senator Paul read his colleagues some much less entertaining magazine columns.) But rather than a marathon, the modern filibuster is a kind of trump card a senator can throw on the table to require a 60-vote majority to advance any piece of legislation or the approval of an appointment requiring Senate confirmation.

A filibuster is like any other tool that can be use responsibly or irresponsibly. Such instruments do not usually create new political vices but only magnify existing ones. In the minds of many older Americans, the filibuster is very closely associated with Democrat-led attempts to thwart civil-rights legislation: The longest filibuster in our history was Senator Strom Thurmond’s infamous stand, lasting 24 hours and 18 minutes, against a civil-rights bill — the Republican bill passed in 1957 under Dwight Eisenhower, not the more famous legislation of 1964. Sometimes, filibusters are used in the face of momentous legislation, and, sometimes, they are used for picayune purposes.

The problem with the filibuster is the problem that inhibits Congress especially and Washington more generally in many obvious and subtle ways: procedural maximalism. In our current adolescent political culture, most political actors do not have the prudence or moral sophistication to know when to press a technical advantage to its limit and when to relent. It was for this reason that the Democrats’ impeachment of President Trump had so little real moral effect on the American people — Trump’s impeachment was a foregone conclusion simply because the Democrats had enough votes to impeach him and nothing to hold them back but the good judgment and patriotism of Nancy Pelosi, which do not amount to much. The circuses around our Supreme Court nominations amount to much the same thing: Never mind that these dishonest spectacles undermine the very institutions with which our elected officials are entrusted and that they make effective governance all but impossible: If it can be done, it will be done.

The filibuster is useful, because it is useful in a democracy to be able to say “No” to the people and to their duly elected representatives. That is why we have a First Amendment, a Second Amendment, and the rest of the Bill of Rights: Nancy Pelosi and Donald Trump cannot be entrusted with fundamental liberties, and neither can we, the jackasses who entrusted them with power. The Senate, especially, is supposed to slow things down, to suffocate democratic passions, and to make strait the gate and narrow the way for destructive popular legislation. The more the Senate comes to resemble the House, the less useful it is. The Senate’s distinctiveness serves practical rather than aesthetic functions.

Democrats looking to eliminate the filibuster in 2021 should keep in mind that in January 2017 the elected branches of the federal government were under unified Republican control led by Paul Ryan, Mitch McConnell, and Donald Trump, three representatives of the will of the people to whom Democrats very much wanted to say “No.” Democrats tell themselves a bedtime story about that — that this was not the result of legitimate democracy, which can never fail but can only be failed. That is a superstition, one that James Madison had somehow managed to liberate himself from all the way back in 1787. Madison helped to create a government of checks and balances.

I cannot think of a single thing about Washington today that makes me believe it needs one fewer check.

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