Nuke-the-filibuster advocates argue that the GOP can reverse bad laws when they come to power. Except they almost never do. See: Obamacare.
Nuke-the-filibuster advocates argue that the GOP can reverse bad laws when they come to power. Except they almost never do. See: Obamacare.
I n the Wall Street Journal, F. H. Buckley makes the conservative case for dismantling the legislative filibuster. Though Senate procedure may stop bad laws from being implemented, argues Buckley, it also renders a GOP Congress incapable of reversing noxious policies already in existence:
Imagine a new Congress and a new president elected in 2024 to reverse decades of wasteful interest-group bargains. As Mitch McConnell said in 2013, when the Democrats did away with the filibuster for nominations: “Just you wait!”
The most obvious problem with this theoretical proposition is that, no, I can’t imagine such a thing. Judges and policies are not the same. It is exceedingly improbable that the Republicans will have either the resolve or the votes to overturn any “wasteful interest-group bargains” or any major legislation now embedded in our system.
Even with a majority, Republicans failed to defund Obamacare — the last major reform passed in D.C. And even if they had kept their yearslong promises and succeeded in defunding it, Democrats would simply have crammed through a new national health-care law whenever the next Democrat came to power. It would surely have been more socialist and intrusive. Progressives would probably be happy to do away with numerous existing programs if it gave them a shot at rewriting the law.
Because while conservatives are often happy not passing new laws, progressives “lament the brake that the separation of powers places on new legislation,” Buckley writes. “They look back fondly to Franklin D. Roosevelt’s first hundred days in 1933, when the executive drafted bills, which Congress rubber-stamped without debate.”
Indeed, every Democrat wants to be Roosevelt. Why wouldn’t they? Even today, we are still living under the strictures of his legacy. Democrats treat FDR’s legacy with more adoration than they show for the Constitution. Undoing his byzantine social programs would create a national shock. People, many compelled to build their lives around these ideas, are uninterested in upheaval. Most politicians have little incentive to embrace reversibility on the most significant laws — whether or not the proposed new policies promise to improve on the old ones.
It is also a matter of scale. Progressives who believe that the state holds the answer to most of our problems are also far more comfortable, and adept, at using the state to expand power. Reversing a tax cut is a rather painless political operation compared with, say, reforming Social Security.
Of course, which bills are bad or good is in the eye of the beholder. Buckley, for example, supports a single-payer health-care plan. If you believe that the federal government should be empowered to dictate local health-care decisions, perhaps your view of FDR is not as antagonistic as mine. Whatever the case, Democrats won’t be shy about pushing through another New Deal or Great Society, even if Republicans manage to chip away at the margins. For the Left (aided by compliant Republicans), it’s always two steps forward, one step back. For the Right, the political calculus is simple: It is preferable to stop the Green New Deal now — or force Democrats to pass a watered-down version with a supermajority — than to be forced to muster support to undo that policy after it’s been in place for years.
Granted, it’s true, as Buckley noted, that the filibuster has probably emboldened presidents to abuse their executive power. Yet those presidential actions are typically narrower in scope than bad legislation. And courts are more prone, as Barack Obama learned, to stop unilateral actions of the executive branch than they are to overturn legislative efforts.
Presidents also have an easier time reversing the executive excesses of their predecessors than they do reversing laws. Trump was able to dismantle a large part of Obama’s executive actions in rather short order. And Biden did the same to Trump.
It’s also worth remembering that destruction of the filibuster is just one flank — along with shelving the Electoral College, packing the courts, and attacking equal representation in the Senate — of a broader progressive project to create a more direct federal democracy. Many legislative agenda items that Democrats now support — most consequentially, the takeover of state elections through the “For the People Act” — are meant to subvert federalism and subvert election safeguards.
On many issues, there is an unbridgeable ideological rift in political life, and gridlock on the federal level is the result. What Buckley wants to do is give both parties unfettered ability to compel states to live under the will of the slimmest majorities, or spend their political capital reversing the actions of the previous Congress.
As a political matter, conservatives would be better off living with what they have now than allowing the ever-radicalizing progressive movement to start passing new “reforms.” If a consensus demands changes, a filibuster compels bipartisan compromise. As a philosophical matter, the filibuster is one of the last bulwarks against the final destruction of enumerated powers and federalism. There is simply no “conservative” reading of the Constitution that supports the view that the Founders wanted 51 percent of the people micromanaging the lives of the 49 percent. It doesn’t matter which party is doing it.