This week, a group calling itself “Scholars for Reform” issued an open letter calling for “reform” of the filibuster. Hundreds of intellectual luminaries have signed this letter, including Pulitzer Prize winners, famous writers, and celebrated scholars. While this letter is eloquent in its call for reforming the filibuster, it perhaps makes a far more compelling case against going nuclear to eliminate or change the filibuster.
The letter claims that the U.S. is undergoing a democratic crisis. In part because of the proliferation of “veto points” in the American constitutional order, government is paralyzed, and this undermines Americans’ faith in democratic institutions. According to this narrative, one of the causes of this paralysis is the filibuster, which has “aggrandized executive power, worsened partisan polarization, and decreased policymaking continuity.” Thus, to preserve democracy, the filibuster must be reformed. Crucially, though, the letter does not lay out what this reform should be or how it should take place (whether through the standing rules of the Senate or via the nuclear option).
One could quarrel with some of the premises of this letter. As two political scientists recently argued in The Atlantic, “recent Congresses have been considerably more productive and bipartisan than is generally appreciated,” so it’s not clear that the legislative branch is quite so paralyzed. The sweeping coronavirus relief efforts of 2020 indicate that Congress can act quickly when there is a broad consensus.
Nor might federal deadlock on certain issues always be an existential problem. Yes, the United States does have more veto points in the federal government than many other industrialized democracies do, but it also has a very decentralized regime. Paralysis at the federal level does not mean paralysis at the state levels. Indeed, difficulty of legislating at the federal level probably encourages more state-level policy-making. At the core of the American system is the productive exchange between state and federal governments; that very heterogeneity has helped the American republic respond to successive challenges for over 200 years.
However, in asserting the dysfunction of American democracy, the “Scholars for Reform” letter itself offers a grave warning against going nuclear on the filibuster. This letter laments “aggrandized executive power, worsened partisan polarization, and decreased policymaking continuity.” Nuking the filibuster feeds into dynamics that the signatories claim to oppose.
As defenders of the filibuster (including the 2005 model of Joe Biden) have long noted, the institutional rules of the Senate play an essential role in keeping that body independent from the executive branch. Because those rules frustrate top-down partisan control in the Senate, they also lessen the power of the chief partisan (the president) in that body.
In using 51 votes to ignore the Senate rules on a whim, the nuclear option attacks the institutional character of the Senate. Over the long term, the institutional disruption of the Senate by partisan passions threatens the independence of other institutions, too. Making explicit the inner logic of the destruction of constitutional guardrails, many proponents of nuking the filibuster have also endorsed Court-packing.
There are good reasons to doubt that removing the filibuster even through the standing rules of the Senate would be guaranteed to lessen partisan polarization or encourage bipartisanship. The reconciliation process evades the filibuster, but recent reconciliation bills — such as the 2017 tax cuts and the American Rescue Plan — have been passed on party-line votes. Nuking the filibuster would both represent escalating polarization and worsen that polarization.
Thus, it’s not surprising that this open letter did not endorse the nuclear option. If you’re worried about polarization and executive overreach, nuking the filibuster is like trying to douse a fire with gasoline.