Nuking the Filibuster: Bad for the Senate, Worse for America

By Mike Lee

Wednesday, January 27, 2021

 

To Nuke or Not to Nuke

 

Senators Joe Manchin and Kyrsten Sinema publicly declared their support for the Senate’s cloture rule, which requires a supermajority of 60 votes to end floor debates and pass most legislation. Their statements effectively ended the Senate’s latest flirtation with the so-called “nuclear option” — the parliamentary gambit by which many Democrats want to eliminate the 60-vote threshold with only their 50 votes.

 

While Manchin and Sinema’s principled, institutionalist stand will allow the Senate to finally organize itself for the new 50-50 partisan split, they are coming in for criticism from progressive activists.

 

“Woke” leftists tend to see the Senate’s 60-vote cloture threshold not as a prudent protection of minority rights, but as an anti-democratic obstacle to progress. Indeed, last year former president Barack Obama — a prolific filibusterer himself during his Senate career — falsely derided the filibuster rule as a “Jim Crow relic.” With the 60-vote cloture rule now branded as racist (however unjustly), progressive activists have grown more emboldened and enthusiastic to nuke it.

 

The Left seems to see nuking the cloture rule as a pure win for its side, with no tradeoffs or downsides. It’s a simple step, they believe, that will lead the United States, at long last, to the broad, sunlit uplands of Scandinavian social democracy and campus-style woke-ism.

 

In this belief, the pro-nuke Left is not just wrong, but has things almost completely backwards. They should not be criticizing Manchin and Sinema, but thanking them.

 

Before making my case, let me state unequivocally that I support the legislative filibuster and the current cloture rule (as I supported the 60-vote threshold for presidential nominees until Senate Democrats nuked that in 2013, ultimately to the benefit of Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett).

 

I believe — as I think the Framers believed — that federal law should reflect national consensus and that a divided Senate simply signals the absence of such consensus. Having served in the Senate in both the majority and the minority, I understand the frustrations of inaction on important issues. But the suggestion that Senate inaction on a given bill is a function of outdated — let alone evil — rules is a dodge. Except in the rarest of circumstances, Senate inaction on a given bill is simply a function of its unpopularity.

 

Contrary to most commentary, it actually is not hard to pass any and all legislation in the Senate. Rather, it’s hard to pass one-sided or ideologically aggressive legislation. And so, unlike in the majoritarian House of Representatives, where members of the speaker’s party can generally pass whatever they collectively want, legislating in the Senate requires partisan, ideological, socioeconomic, and often regional compromise.

 

This is no more and no less true than it was decades ago, when the Senate processed legislation all the time. Indeed, the whole purpose of the Senate is to provide the American people — a culturally, religiously, politically, economically, and geographically diverse people — a venue for considered, deliberative debate to forge compromise and consensus bridging all those divides. That’s what the Senate did from the Founding until just a few years ago, when the ideological sorting of the parties and the media-driven intensification of our political discourse made bipartisan compromise ever more inconvenient to incumbent senators’ reelection campaigns.

 

When in control of the Senate, members of both parties blame their lack of success on what they inevitably characterize as “obstruction” by their minority opponents. But in truth, it has been Republican and Democratic majorities’ own choice, on issue after issue, to pass nothing rather than to compromise or — heaven forbid — to put unfinished bills on the floor and allow all 100 senators to organically work out the will of the Senate through an open debate and amendment process.

 

The true purpose of nuking the filibuster, then, is not to “finally get things done” or to “break through the gridlock” or any other hackish trope parroted by the political press. Rather, it is to allow a Senate majority to pass partisan bills that aren’t politically compelling enough to attract bipartisan support. That’s not a value judgment; it’s a fact.

 

What the Democrats’ “Nuke It!” caucus seems to believe is that such bills — those popular enough to get 51 Senate votes, but not 60 — are somehow, by definition, progressive. This is where they veer from theory into fantasy.

 

The Ratchet and the Wrench

 

Conservatives often complain about the growth of the federal government as a “ratchet” — Democrats expand government when they are in charge, but Republicans can never shrink it when we take over. It seems that the Left has convinced itself that this phenomenon is a law of nature, like gravity or the rotation of the earth. Progressives who want to nuke the 60-vote cloture rule seem not to understand that their ratchet, their immutable law of nature, is really just . . . the 60-vote cloture rule.

 

Again, I believe nuking the filibuster would be bad for the Senate and bad for the country. But make no mistake: It would be very, very good for many conservative activists and an absolute disaster for the Democratic Party’s woke, progressive elite.

 

Here, in no particular order, is an inexhaustive list of conservative policy reforms that have never had a serious chance to win 60 Senate votes under current rules, but that could very plausibly get 51 in a post-nuclear upper chamber after the next “red wave” election.

 

·        Education reforms embracing school choice, simultaneously rescuing poor families from lousy school bureaucracies and politically declawing left-wing teachers’ unions.

 

·        Fully funding a border wall and workplace enforcement of immigration laws, including the overdue “E-Verify” system.

 

·        Wholesale reform of the federal civil service and the Administrative Procedures Act, depoliticizing and disempowering the unaccountable, monolithically leftist federal bureaucracy.

 

·        Health-care reform to make health-savings accounts or association health plans more attractive than government-run insurance programs.

 

·        Laws to improve America’s election security and integrity.

 

·        Defunding Planned Parenthood and other abortion providers, and restricting post-viability and sex-selection abortions.

 

·        Defunding critical-race-theory boondoggles at federal agencies and federal contractors.

 

·        Defunding school districts and universities that embrace the “1619 Project” and similar anti-American, ahistorical fiction.

 

·        Correcting outdated regulations governing our biggest technology corporations, especially the rules governing social media companies’ opaque and biased moderation practices.

 

·        Barring federal aid to cities that defund their police departments.

 

·        Protecting religious freedom from woke outrage mobs.

 

·        Stripping jurisdiction over controversial social issues from activist federal judges, and democratically overturning past unconstitutional judicial rulings.

 

·        Turning the District of Columbia — over which Congress has total legislative authority — into a working laboratory of conservative policy experimentation.

 

·        Ending “fiscal cliff” brinkmanship with laws that automatically trigger continuing resolutions and debt-limit increases coupled with across-the-board spending cuts, should Democrats ever fail to compromise with Republicans on those deadline bills.

 

·        Further protecting Americans’ Second Amendment rights.

 

·        Ending cronyist policies that empower corporations at the expense of small businesses, and cutting into the federally subsidized corporate sponsorship of left-wing activism.

 

·        Tying colleges’ eligibility for federal student loans and tax-free endowments to their protection of the First Amendment and due-process rights on campus, and perhaps even the intellectual diversity of their faculty.

 

·        Tying U.S. contributions to the United Nations to the implementation of long-overdue reforms of the corrupt international organization.

 

·        Adding work requirements and ending marriage penalties in every federal welfare program and every state program that receives federal matching funds.

 

·        Updating the National Labor Relations Act with right-to-work reforms and modernizing its rules for America’s hyper-politicized public-sector unions.

 

·        Block-granting or voucherizing Head Start and low-income housing programs so they don’t fail yet another generation of poor families.

 

·        Increasing fracking and nuclear-energy production.

 

·        Divesting the federal government of millions of acres of land it owes to western states like Utah.

 

This list doesn’t even consider the Cheesecake Factory menu of structural budget reforms, regulatory reforms, and legislation calling for devolution of dysfunctional federal programs down to the states, proposals that are piled up at conservative think tanks across the country just waiting to be implemented.

 

Unified Republican governments have failed to enact these things before not because we lack the nerve or because we’re secretly just as socialistic as the Left. It’s because of the 60-vote threshold in the Senate!

 

Each of the reforms mentioned above offends powerful and generous Democratic special interests. Indeed, many would render those special interests much less powerful and generous. And so, Senate Democrats, as perfectly rational partisans, deny Republicans the 60-vote majorities they need to pass such reforms.

 

When reform-minded conservatives complain about the GOP only ever using congressional majorities to pass tax cuts, this is part of the reason: Thanks to the reconciliation process, tax bills can pass the Senate with only 51 votes.

 

Outside of basic fiscal policy, though, even when Republicans win elections, four-fifths of our agenda is left on a shelf from day one because Democrats have no interest supporting bills that would defund and defang their government-subsidized political coalition. If Democrats nuke the legislative filibuster, however — as they did the judicial filibuster, to their equally predictable regret — all of a sudden the ratchet of American politics will become a wrench. Immediately, and for the first time since the emergence of the modern conservative movement, the entire Republican platform would become legislatively achievable.

 

This would be a change to American politics not in degree, but in kind — and in partisan terms, almost entirely to the advantage of the Right.

 

The Reactionary Left

 

Deep down, everyone is conservative about the things he loves. And what Washington Democrats love — much more than they would ever admit — is the status quo.

 

I don’t think progressives today appreciate how conservative — even reactionary — they have become. And like all good, crotchety conservatives, the Democratic Party’s deepest mission today is preserving past gains, not achieving new ones. The Senate cloture rule helps — not hurts, helps — Democrats by digging moats and erecting stone walls around existing policies.

 

If Democrats were to nuke the filibuster this year to pass, say, the Green New Deal, not only would that accomplishment be built on sand, but they would also, at a stroke, unintentionally relocate dozens of heretofore impregnable Democratic policy fortresses onto the sand with it.

 

Do Democrats seriously believe that a $15 minimum wage or Medicare for All (for a few years) is really worth surrendering the permanent political Death Stars of the administrative state and America’s public-sector unions? The Planned Parenthood gravy train? The indoctrinating, monolithic leftism of our education industry? Negotiating leverage on every appropriations and debt-limit bill? The Donald J. Trump Commemorative Border Wall? Not to mention the billions of dollars in campaign cash taxpayer-financed interest groups will no longer have to fund Democratic candidates?

 

A Gift We Should Not Want

 

Upon reading this, conservatives heretofore fretting about the Democrats deploying the nuclear option might now be licking their chops, begging Senate Democrats to hand us this gift. But as gratifying as it would be to see the aforementioned conservative reforms put into law after the next “red wave” election, and as happy as I would be voting for most of them, I still urge my victorious Democratic colleagues to resist the temptation. Partisan advantage aside, it remains the case that nuking the filibuster would still be bad for America.

 

Especially as our nation grows more diverse — and, alas today, more divided — members of Congress should embrace the 60-vote Senate as an anchor to the realities outside our Beltway and partisan bubbles, a vital check not only on the other side’s ambitions, but also on our own. The parties are so far apart now, and public dissatisfaction with the federal government so high, that what we should be seeking is consensus, not zero-sum partisan gain. Better still, we might let that consensus be hashed out through amendment votes and deliberative debates on the floors of the House and Senate, rather than negotiated behind closed doors and backed up to artificial deadlines threatening economic disruptions.

 

As a conservative, I might oppose many of the resulting compromises. But there would also be lots of bills and amendments I could support — I’d introduce a lot of them myself — and opportunities to work on issues such as civil liberties and criminal-justice reform, where I vote with Democrats at least as much as my own party. There is plenty of room for bipartisan cooperation in Washington today, even on big issues. But it requires, among other things, dropping the premise — too popular on both sides and dogma on political social media — that partisan opponents are not just wrong but bad, that disagreement is illegitimate, and that “error has no rights.” America is a constitutional republic, not a church, and political minorities are equal citizens to be engaged, not heretics to be excommunicated.

 

Nuking the filibuster is advocated in the interests of “democracy.” But the United States is not a democracy in the strictest sense, and thank goodness. Pure democracy, as has been said, is two wolves and a lamb voting on what to have for lunch. The reason we have a written Constitution is to set certain things above and outside the authority of a mere majority vote: the freedoms of speech, religion, and association; the right to bear arms; the right to equal justice under the law. Our system of counter-majoritarian checks and balances — including the Senate, the Electoral College, judicial review, and, yes, the cloture rule — is designed to protect minorities from the hubristic overreach of fleeting congressional majorities.

 

The belief that such checks are necessary for “them” but not for “us” because “our” ideas are so obviously correct is the very self-righteous folly the Founders had in mind when they created those checks. The Constitution intentionally diffuses power horizontally among three branches of the federal government and vertically between the federal government and the states, specifically to prevent small majorities from abusing temporary power to stick it to their minority opponents. The legislative filibuster is not a check on “progress;” it’s a check on our fallen human nature.

 

Like the heroes of The Lord of the Rings, conservatives should not wish to wield unchecked power any more than we would wish it in the hands of our opponents.

 

I cannot deny that in the short term, nuking the filibuster would probably help impatient leftists get more progressive legislation to President Biden.

 

In the long term, though, it would hurt the country, badly, because both parties would have less incentive to build consensus coalitions. Our current elite-driven divisions would self-reinforce. Our politics would sink to ever-angrier toxicity. And our future discourse would make Twitter today look like the Lincoln-Douglas debates. That future is not inevitable, but that is the future that awaits us on the other side of the nuclear option.

 

In a perfect world, this dark picture of political ugliness and dysfunction would be enough to dissuade Senate Democrats from ever pressing the nuclear button. In this imperfect world, perhaps the stronger argument is simple partisan self-interest.

 

Because in the medium term, Democrats nuking the Senate filibuster would be greatest gift conservative policy has been given since Ronald Reagan decided to quit acting. For Democrats, it would be the most self-destructive miscalculation in the history of American politics, a voluntary surrender of the legislative high ground in almost every domestic policy debate. And it would swing a giant wrecking ball into the taxpayer-subsidized interest groups that constitute the Democrats’ political and fundraising coalition.

 

If Democrats ever do start a legislative “nuclear war,” rest assured: In crude, partisan terms, Republicans would “win” that war, to a degree and at a pace unimaginable in our current “conventional” political conflict.

 

Unfortunately, this unprecedented opportunity for the Right would come at the expense of our constitutional institutions and the American people’s right to consensus-based federal policymaking. So patriotic conservatives should hope Democrats never nuke themselves. And frustrated progressives should thank Joe Manchin and Kyrsten Sinema for saving them from themselves.