President Trump and some of his allies have urged Republicans in the Senate to use the nuclear option to eliminate the filibuster and thereby pass a budget that appropriates $5 billion for the president’s “wall.” But the nuclear option seems a pretty unlikely one. Majority Leader Mitch McConnell has long been a defender of the legislative filibuster, and, as of this writing, Jeff Flake, Lamar Alexander, and Orrin Hatch have already come out in opposition to using the nuclear option this time. So it’s hard to see where Republicans will get 51 votes to end the legislative filibuster.
As I’ve long argued, they shouldn’t end the legislative filibuster for many reasons; it’s a core part of the institutional DNA of the Senate, it encourages consensus, and it places limits on the power of ideologues to ram through a no-compromise agenda. In a divided nation, those institutions of consensus play a key role, and, as the passage of FIRST STEP earlier this week shows, it is still possible for significant pieces of legislation to get bipartisan majorities. The filibuster encourages legislators to pass measures that don’t only pander to their core supporters, which is probably a good thing in terms of ensuring national comity.
“The wall” is a signature Trump campaign promise, and it’s understandable why proponents of a more sustainable immigration system might want it. However, there’s no guarantee that Republicans will get this wall even if they blow up the filibuster. They might not have 51 votes in the Senate for that wall funding. Moreover, there were some wasted opportunities for wall funding in the 115th Congress. It could have been attached to a big-ticket infrastructure bill. Or it could have, and potentially could still be, traded for some Democratic priority (such as an increase in the minimum wage). Congressional Republicans never got behind a unified strategy for a DACA fix that could have included money for the wall; for instance, House leadership splintered Republicans by offering multiple DACA bills. Republicans could also try some creative legislative tactics to work around a Democratic filibuster on the shutdown (maybe by using Rule XIX?).
To blow up the filibuster now would be a mistake in terms of partisan strategy and national institutions. It’s also a mistake that Republicans are better off not even musing about making; every Republican who goes on the record now about nuking the filibuster will have his or her words thrown back at him when Democrats control the presidency and both congressional chambers. (Partisans might not like to admit it, but the other side always gets its turn in power.) Some on the left are already pushing Democrats to nuke the filibuster the next time they gain power, and Republicans should be wary about giving ammunition to leftist opponents of the filibuster. Keeping the filibuster through this period of national acrimony might help sustain moderating structures for another generation.