What Do We Want Congress to Do?

My defense of the filibuster today was partly prompted by this thoughtful post by my friend Mark Strand, a longtime supporter of the filibuster who has recently changed his mind. He writes that the contemporary practice of the filibuster has resulted in

a kind of mutually assured dysfunction: each side protects itself from short‑term political risk by ensuring that nothing of consequence can pass. . . .

The consequences of a dysfunctional Congress are severe. A legislature that cannot legislate does not simply leave a vacuum; it invites the executive to fill it. When Congress will not act, Presidents find a way—whether it is President Obama’s “pen and phone” or President Trump’s “Liberation Day” tariffs—using executive orders and creative interpretations of existing statutes to achieve policy goals that should be hammered out in law. Every time Congress shrinks from its responsibilities, it becomes easier for Presidents to treat unilateral action as the norm rather than a last resort, and harder for Congress to preserve its constitutional role.

This view of how power has shifted from Congress to the president is squarely in the mainstream — but is it really correct? Congress didn’t “leave a vacuum” either in the case of immigration under Obama (the chief example of his use of his pen to set policy) or trade under Trump. Obama just chose not to enforce the laws that Congress had written in the first case, and Trump chose to use a creative interpretation of the law that Congress had written in the second. Congress didn’t have a responsibility to pass the amnesty that Obama wanted or the tariff hikes that Trump did. Presidents just wanted policies they couldn’t get through Congress. The congressional failure here wasn’t failing to legislate in these areas: It was failing to block presidents from doing this sort of thing.

Ending the filibuster might help Congress fight back in those cases where one party has the White House and the other majorities in the House and Senate. But note that the typical case against the filibuster, and all the political force behind ending it, covers a completely different scenario: There’s unified control of all three, but the party in power is supposedly not getting its way enough. That was the Democrats’ argument against the filibuster under Biden, and it’s Republicans’ argument against it now.

Whether we should have a filibuster, and if so whether we should make changes to it, depends on a prior judgment about what it is that we want Congress to do — and, if we think Congress is failing, about how it is failing. In the Corner earlier today, John Puri seconded George Will’s recommendation that we return to a one-track filibuster: While one is happening, the Senate wouldn’t be able to do much else. That’s a reasonable idea. But we should keep in mind why the Senate changed the rules in the 1970s: because it wanted the majority to be able to pass more legislation.

Single tracking would mean that the Senate majority would pass fewer bills. And maybe passing fewer bills is either good in itself or a price worth paying. But it’s the very opposite of what most filibuster opponents want.