Don’t Burn Our Own Fortifications

O n rages the fight by a faction of the right to break the Senate legislative filibuster in order to pass the SAVE Act or SAVE America Act (or, if you will, the fight to use that bill for the desired end of breaking the Senate legislative filibuster). It reached new heights of rhetorical overkill with Elon Musk tweeting, “Failing to pass SAVE is an act of high treason against the people of America.”

As I’ve elaborated here and here, and as our editorials have explained here and here, abolishing or even watering down the barrier placed by the filibuster against bad national legislation would be foolhardy; doing so for this particular bill would create far more mischief over the long run than benefits. It would play into the hands of the left by giving the left what it has long wanted — an end to the filibuster, and thus the power to enact any and all legislation without the consent of 60 senators — but currently lacks, while freeing Democrats of the wrenching political cost of being the ones to take that step.

Rather than rehash those arguments in detail, let’s step back and consider the fundamental asymmetries in our system and why the Senate in general, and the legislative filibuster’s 60-vote threshold in particular, is a boon to conservatives. The unyielding fact of politics, or any form of conflict, is that how you fight should be dictated by what you fight for and who your troops are. The right fights for different ends than the left, and fights with different supporters. It would therefore be foolhardy to let the left lure us into playing its game, on its turf, by its rules.

That’s exactly what’s happening here. It’s true that the left often seeks unpopular ends by bundling them with popular ones, or by burrowing its way into institutions unaccountable to voters or markets. And it’s true that the left’s view of majoritarian democracy is selective. Under the progressive theory of supervised democracy, everybody votes and we swiftly enact whatever they want — but then only those things that meet the approval of unelected elites actually become effective. The perfect model of this is the referendum process, which lets the left evade the deliberative process of legislating, but then ensures that courts strike down most right-leaning policies that get enacted by referendum.

But just because the left has alternative paths around democracy doesn’t change the fact that it periodically gains popular power, as it did in 2020, 2008, 1974–76, and for much of the 1960s. And when it does, it gets very impatient to remake the rules on a national and permanently entrenched basis.

Because stopping sudden movements of the ratchet away from us is more crucial than anything our own side is likely to accomplish, thwarting those moves is the most important power that conservatives have. The power to do so against an onslaught of radicalism is one we are apt to need quite soon. The fact that our domestic political adversaries wish to overrun our position is no reason to abandon it rather than entrench it.

Consider a military analogy. The left has, in effect, a larger standing army than the right. It has more people, more resources, and more institutions professionally and continuously engaged in politics. It is far easier for the left to drum up street protests and press coverage and social media panics and a roster of “experts” on demand for any cause than it is for our side. The right may well have a larger force that can be deployed, but our side is more like a citizen militia, full of people who will fight like tigers on their own doorsteps but then want to go back to their homes, jobs, and families.

As George Washington and Nathanael Greene understood, when you’re fighting a larger professional army and need to rely on militia to supplement your regular forces, the absolute last thing you want is to get goaded easily into fighting in the open fields. What you want, when you pick your battles or are forced into them, is to fight with fortifications that play to the strengths of your troops — not to send them swarming without cover. There’s a reason why the militia fought so spectacularly at Bunker Hill but got massacred at Camden, when Horatio Gates forgot the lessons that had allowed him to prevail with the militia’s help at Saratoga.

The Founding Fathers gifted us with four fortifications that conservatives have long used to hold back the periodic tides of passing left-wing popular enthusiasms: the Senate, the Supreme Court, the states, and the Electoral College. These structural bulwarks have been reinforced by practices such as the fixed membership of the Court and the legislative filibuster. They have recently worked well: The Court is now firmly in the hands of the most conservative majority in a century, and there are only 38 Senate seats from solidly blue states, of which Democrats presently hold 37 (Susan Collins being the lone obstacle). There are 23 states with unified Republican control, but only 16 with unified Democratic control.

And yet, some on the populist right would burn down these fortifications: defy Supreme Court rulings, raze or significantly water down the filibuster, and promote more national legislation that strips away state power. That’s insanity. One of the chronic flaws of populism is its inability to think structurally or with a long-term strategic view. Populists must persuade themselves that only shadowy cabals or weak-willed leaders stand in the way of permanent victory for The People, which blinds them to the fickleness of popular opinion and the possibility that the other side might fairly win elections sometimes, too. Rhetoric denying that abounds in the SAVE America Act discussion — hence, the bill title.

A second flaw of populism is envy: seeing what the left can do and wishing to have the same powers. But chasing after tactics our side has long been unable to replicate is a foolish substitute for the powers we already have.

A winning movement doesn’t start pining for new powers unless it has run out of things to do with the powers it already has. Yet, Republicans have left plenty on the table so far that would not require 60 votes in the Senate. If they want to put Donald Trump’s tariff powers on a sounder legal footing ahead of a potential loss of the House, they could have held a vote on that by now. If they wanted to take it to Democrats on public funding of their culture-war institutions, they could have defunded Planned Parenthood for more than just one year. The executive branch, for that matter, could be enforcing existing federal laws against interstate shipment of abortion pills and rolling back Biden-era weakening of FDA safety rules for the pill. If they wanted to put additional stress on the blue-state model that funds things like the Somali fraud scandal in Minnesota, they could have tightened the screws on the state and local tax deduction — instead of raising the SALT cap to bail out blue governors and mayors.

But those things take work and require foresight and strategic thinking. Better to burn our own redoubts and hope we never need them again, eh?