For The Atlantic, Norman Ornstein has written a piece purporting to lay out “The Smart Way to Fix the Filibuster.” What he actually seeks is to kill the filibuster without admitting to killing it.
Ornstein, a resident scholar at the American Enterprise Institute, was once a defender of core American democratic institutions such as the Electoral College. In recent years, however, he has become something of a reliable proponent of schemes, dressed up in moderate language, to give progressive critics of those institutions what they want. He has described changes to the filibuster as “enticing” in light of Republican opposition to some of these proposals. His Twitter feed is dotted with such sentiments:
An out-of-the-box idea to solve two problems, the huge, growing rural bias of the Senate and the Electoral College: a Constitutional Amendment to add 12 Senate seats, elected at-large nationally, 4 every 2 years. 12 more EVs, allocated by national popular vote. 1/
— Norman Ornstein (@NormOrnstein) August 17, 2020
Must-read on the dangers of the Electoral College, and why it benefits all Americans to favor the national popular vote. https://t.co/ZTGqBNVpm2
— Norman Ornstein (@NormOrnstein) February 12, 2020
I don’t fully agree. Here are the things that push toward changing the rule: adding DC and Puerto Rico as states, enlarging the size of the Supreme Court and appeals courts to counter McConnell court packing. Campaign finance and redistricting reform. All huge issues for Dems
— Norman Ornstein (@NormOrnstein) February 1, 2019
No. You can keep tenure during good behavior by moving justices to an appeals court. Or allowing them to take senior status if they prefer..
— Norman Ornstein (@NormOrnstein) February 19, 2020
By 2040, 50% of Americans will live in 8 states. The distortions of the Electoral College will get worse, and the chances that a presidential winner will lose the popular vote by a lot will go up. We need to enlarge the House by 100 or more, just to start, to alter the balance.
— Norman Ornstein (@NormOrnstein) September 2, 2020
His proposal to change the legislative filibuster, framed around what Democrats should do if Biden wins, they retake the Senate, and Republicans oppose their policy proposals, should be read in light of that posture.
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Ornstein says that “rather than scrap the filibuster entirely, the Democrats may want to instead consider reforming the procedure, so that it continues to exist for truly extraordinary circumstances, but ceases to be the easily deployed blockade it is today.” But his proposal would effectively kill the filibuster. Here is how he frames it:
The current rule in the Senate for legislation is that if a filibuster is conducted, three-fifths of the Senate—60 of the 100 senators—must vote to invoke cloture, which means stopping debate and moving toward a vote on the bill. It is a high hurdle, and the burden is perversely on the majority, not the minority, to overcome the delay. . . . The answer is . . . to flip the numbers: Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.
And here is how he says this would work in practice:
If, for example, Democrats introduced a sweeping package of democracy reforms and Republicans filibustered them, the majority could keep the Senate in session around the clock for days or weeks and require nearly all the Republicans to be present constantly, sleeping near the Senate floor and ready on a moment’s notice to jump up and get to the floor to vote — including those who are quite advanced in years, such as Jim Inhofe, Richard Shelby, Charles Grassley, and Mitch McConnell. It would require a huge, sustained commitment on the part of Republicans, not the minor gesture now required. The drama, and the attention, would also give Democrats a chance to explain their reforms and perhaps get more public support — and eventually, they would get a law. [Emphasis added.]
Ornstein says that his proposal “will not allow Democrats to pass everything they want,” and will keep the filibuster for “when a minority . . . feels so strongly about an issue of great national significance that it will make enormous sacrifices to delay a bill.” In other words, the legislative filibuster would no longer be able to prevent the passage of a bill; it could only slow it down, because octogenarian senators aren’t capable of staying on the Senate floor round the clock for years on end, no matter the righteousness of the cause. (Note the asymmetry here: Ornstein does not propose to change the rules so that an immediate, snap floor vote would then be held. If this were the case, then at least the majority would also have to keep all its people on or near the floor at all times, since otherwise the minority could just drop the filibuster at 3 a.m. when there’s only a handful of people in the chamber, and win the floor vote.)
Ornstein’s alternative suggestion to “raise the minority threshold to 45 votes required to continue debate, instead of 40” and his assertion that his proposed reform “will stop the filibuster from standing in the way of necessary, broadly popular initiatives” further give away the game here. This is not about reforming the filibuster, but about ending it.
Ornstein tries to justify proposing such a radical change by saying that he would “return the filibuster to its original intention — something to be used rarely.” Now, it is true that the filibuster has been used more regularly by both parties in the past two decades to stall all sorts of legislation, but the procedure itself has always allowed for long-term blockades. The basic ability of the minority to prevent a floor vote on major domestic legislation has never been eliminated, and stretches back to the dawn of the American republic.
Both chambers of Congress originally allowed for unlimited debate; the House abolished it in 1842, and the Senate limited it through cloture rules instituted in 1919 and 1975. Traditionally, Congress did not sit in session year-round as it does today — in the 19th century, a new Congress would convene in December, not January, following an election the prior year — and before air travel, most senators did not return home regularly when in session. Unlimited debate was an effective way of blocking legislation, because running out the clock in a shorter session was tantamount to doing so for good.
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For conservatives, of course, the fact that the legislative filibuster has been time-tested as part of our constitutional structure is reason in itself to be skeptical of efforts to eliminate it; experience is the lifeblood of conservatism because it represents the accumulated lessons of our collective national trial and error.
But even leaving that philosophical point aside, the power to filibuster legislation is an essential, traditional check on a particular weakness of democracy: that the elections of one season can make laws for generations to come. This was the very weakness illustrated by Obamacare’s passage before the 2010 elections; the law, rammed through Congress in the short time that Democrats controlled both chambers, has stayed on the books for years despite being deeply unpopular, and is now likely too entrenched to ever be changed.
For a variety of practical and political reasons, federal laws — and particularly large, “comprehensive” federal programs and regulatory schemes — are almost never repealed, pretty much regardless of whether they work well or not. They’re generally designed that way: The president promises a for-all-time solution to a problem; bills are written so as not to require reauthorization or, in some cases, regular appropriations; bureaucracies are created, unionized civil servants are hired, and businesses, lobbyists and legal advisers grow up around the regulatory scheme; and self-interested segments of the population grow dependent on the status quo. In other words, if you’re concerned about the dead hand of tradition ruling the future, the last thing you should want is a system that makes it easy for a political party that wins a majority in one election cycle to saddle us permanently with massive new federal legislation.
An important component of our system is deliberation. If the Founders had set things up so that a recently constituted popular majority was all that was needed to rule the day, that would be one thing. But they didn’t; they gave us a Senate that is by design both deliberative and anti-majoritarian, with equal representation granted to states of varying size and only a third of members forced to face the voters each biennial election cycle. Building a 60-vote majority in the Senate often takes years of hard work; it can be done, but it requires persuading a broad spectrum of voters, precisely because the Framers understood the need for a sobriety check on hasty, permanent change. Under Ornstein’s proposal, this check would be effectively useless, because the Senate minority would stand no chance of delaying a vote on any bill long enough to hold another round of elections.
The budget-reconciliation process, as the major exception to the filibuster rules, is supposed to be different: While it is difficult to undo bad spending decisions, it ultimately remains the case that federal taxation and spending policies are set anew each year, as they are in states and municipalities across the country. The reason it was so abusive to apply the reconciliation process to Obamacare was precisely because its supporters never even pretended that they intended anyone to revisit the law from scratch at some point in the future. The same would be true of Ornstein’s list of “big plans, such as enacting the John Lewis Voting Rights Act and other democracy reforms, expanding health coverage, and moving toward clean energy.”
Moreover, as we have seen over the past two decades, when Congress does face a genuine need to act quickly and popular pressure to do so, the bipartisan, filibuster-proof majorities necessary for the task tend to coalesce with much greater speed. Debate over the Patriot Act, TARP, and the CARES Act all followed this pattern, and whatever their other flaws, these bills were able to clear the filibuster threshold because they were not permanent: They aimed at a short-term solution to an emergency, or included sunset provisions requiring them to be reauthorized by Congress at a later date.
There was a fair case to be made for limiting the filibuster of executive-branch and judicial nominations in the way that Ornstein describes, and in fact I argued back in 2005 that the judicial filibuster should be neutered in a similar way. That is all water under the bridge now, ever since Senate Democrats mostly abolished the judicial-nominee filibuster in 2013, and Senate Republicans responded by eliminating it for Supreme Court nominations in 2017. But the procedure for passing laws is a different matter than the procedure for confirming presidential nominations.
Some Senate Democrats have publicly blanched at abolishing the legislative filibuster. It remains to be seen whether they are serious about that; we won’t know until they are no longer in the minority. But if they try to use Ornstein’s proposal as a fig leaf for killing the filibuster without admitting to doing so, they should be called on it.