There Can Be No Filibuster ‘Carve Out’

By Charles C. W. Cooke

Tuesday, January 11, 2022

 

Speaking in Georgia today, President Biden will formally abandon his long-standing support for the legislative filibuster and endorse a “carve out” for the “voting rights” agenda that he and his party have quixotically elected to pursue. “Mr. Biden,” the New York Times confirms, “will not go so far as to call for full-scale elimination of the filibuster, a Senate tradition that allows the minority party to kill legislation that fails to garner 60 votes.” Instead, he “will endorse changing the Senate rules” to allow only for what he wishes to achieve in the next month. Americans who tune in to the speech should refuse to fall for the ruse.

 

Biden can characterize the move however he likes, but he cannot hide the uncomfortable fact that, in practical terms, he is endorsing the wholesale abolition of the filibuster, for all legislation, in all circumstances, and under majorities held by either party. There is no such thing as a “narrow exception” to this rule. If the Democrats proceed, they will alter the Senate forever.

 

Judging by the enthusiasm with which the White House has shared previews of his speech, President Biden hopes that his audience will be hypnotized into believing that the Democrats have been left no choice but to dispense with the tradition. This passage from the address, in particular, has been designed to create the impression that we are living through an unequaled historical mess:

 

The next few days, when these bills come to a vote, will mark a turning point in this nation. Will we choose democracy over autocracy, light over shadow, justice over injustice? I know where I stand. I will not yield. I will not flinch. I will defend your right to vote and our democracy against all enemies foreign and domestic. And so the question is where will the institution of the United States Senate stand?

 

These are nice words, and they will be repeated breathlessly in the media and beyond for the next week, next month, or more. But they’re also words that could be easily adapted to justify the Republican Party’s abolishing the filibuster in order to impose, say, a nationwide ban on abortion.

 

“The next few days,” President DeSantis might say,

 

when these bills come to a vote, will mark a turning point in this nation. Will we choose life over death, light over shadow, justice over injustice? I know where I stand. I will not yield. I will not flinch. I will defend your right to life and equality under the law against all enemies foreign and domestic. And so the question is where will the institution of the United States Senate stand?

 

In such a circumstance, DeSantis wouldn’t be calling for the total abolition of the filibuster, you must understand. He’d merely be asking for a “narrow carve out” — designed to address the Democrats’ “repeated obstruction” of bills protecting that most elemental of American values, the right to life, liberty, and the pursuit of happiness. And just as President Biden believes that voting is “different” because it is explicitly addressed in the Reconstruction Amendments, so President DeSantis might believe that life is “different” because it is mentioned in the Declaration of Independence and covered under  the equal-protection clause. In such a circumstance, Vice President Tim Scott might explain to the Wall Street Journal that, while DeSantis had been reluctant to endorse such a move, the president felt that it was necessary to “reaffirm that securing the right to life is essential to safeguarding and strengthening our democracy.”

 

Pick your poison. I daresay that the Democratic Party has genuinely convinced itself that there is a meaningful threat to the right to vote in the United States, but it must understand that there is no good reason that the Republican Party cannot do the same thing on another deeply felt matter. Maybe it would be reforming federal entitlements, so as to fix the existential threat posed by a debt crisis. Maybe it would be nationalizing concealed carry, so as to ensure that the Second Amendment is incorporated in the manner anticipated by the privileges-or-immunities guarantee within the 14th Amendment. Maybe it would be protecting the sanctity of the franchise by demanding voter-ID requirements and eliminating same-day registration. Who knows? The point is that no party has a monopoly on use of the it’s-too-important clause, which is why our system does not tend to feature it’s-too-important clauses, and why, on the rare occasions that they are invoked, they have a bad habit of destroying the institutions to which they have been attached and backfiring on those who wielded them.

 

With the exception of Kyrsten Sinema, who has defended the filibuster on the grounds that it prevents “radical reversals in federal policy which would cement uncertainty, deepen divisions, and further erode Americans’ confidence in our government,” and Joe Manchin, who has noted correctly that “anytime there’s a carveout, you eat the whole turkey, there’s nothing left,” the institutional Democratic Party seems to struggle mightily to comprehend this. Ask a Democrat why their project is “different” from a future Republican project, and you will eventually be told in exasperation that it is because the Democrats are Good and the Republicans are Bad.