Keep the Senate Filibuster

By David Harsanyi

Thursday, March 18, 2021

 

The Democrats’ campaign to destroy the legislative filibuster is predicated on three questionable claims.

 

The first is that allowing a 60-vote threshold in the Senate to cut off debate is antiquated, fundamentally undemocratic, and an impediment to progress that facilitates “minority rule” — by which Democrats mean “federalism.” Now that the Democrats have won a narrow, probably fleeting, majority, they want the unfettered ability to compel an entire nation to live under intrusive partisan generational “reform” bills. This brand of majoritarianism is objectively un-American, undermining the proper constitutional limits of the federal government to lord over states and localities. The filibuster isn’t in the Constitution, but in many ways it is one of the last tools available to uphold its spirit.

 

It’s worth remembering that destruction of the filibuster is just one flank in a broader progressive norm-busting project to create a direct democracy, along with getting rid of the Electoral College. America’s tragic lack of civic education allows these majoritarian ideas to grow in popularity.

 

The second argument, like most political topics these days, is grounded on a vacuous assertion of racism. As with nearly all objects of left-wing animosity, the filibuster has been transformed into a tool of “white supremacy,” an accusation that is meant to chill debate and to slander, by implication, anyone who supports the current Senate practice.

 

Barack Obama offered this very justification at the funeral of Representative John Lewis last year, contending that the filibuster — first used in 1837, but more famously in opposition to a national bank charter in 1841 — was a “Jim Crow relic.”

 

An inquisitive listener might have wondered not only why Obama had relied on this ugly and bigoted parliamentary procedure on numerous occasions during his short stint as a senator but also why he had argued that eliminating the filibuster would be an authoritarian effort that empowered the majority to “make all the decisions while the other party is told to sit down and keep quiet.” At the time, Obama had justifiably reasoned that eliminating filibusters exhibited an “‘ends justify the means’ mentality” and that once the minority was excluded from decisions, “the fighting and the bitterness and the gridlock will only get worse.”

 

Of course, it should be added that it does not necessarily reflect poorly on counter-majoritarian institutions that southern bigots used a Senate tool with a long history in Western liberal tradition for their nefarious purposes. Or, at least, no more poorly than the freedom to say stupid things reflects badly on the First Amendment or than the ability to elect bad candidates reflects poorly on voting rights.

 

The third argument, and until recently the most popular, centers on the notion that the filibuster is abused by alleged nihilists whose agenda is devoid of any ideas other than saying “No.” The filibuster combined with the conservative disposition, they argue, creates a dangerously dysfunctional and ineffective federal government.

 

Now, I will admit that a federal government with less power sounds enticing to me. But, even if you disagree, surely the efficacy and morality of Congress should never be measured by the number of bills it passes, especially when the nation is deeply divided on major issues. A government that can impose California’s policies on West Virginia is far more dangerous to the American project than an impotent Senate. Gridlock is the healthy organic state of a divided nation.

 

Recent history offers some valuable lessons on this front. When Democrats decided to remake the entire health-care system without any buy-in from half of the country in 2010, they fundamentally altered American politics. Obama’s unprecedented decision to push through the Affordable Care Act without national consensus ended up bequeathing both houses of Congress and numerous states to Republicans, who in turn upheld the will of their constituents by opposing the rest of the president’s left-wing agenda. As Obama had predicted, unilaterally imposing colossal partisan reforms fueled more fighting, bitterness, and gridlock. 

 

Since then, Democrats have acted as if not getting their way were proof that “the system” is irreparably broken. Before Republicans won back the Senate, Harry Reid blew up the judicial filibuster, a move that, he had once rightly argued, would “destroy the very checks and balances our Founding Fathers put in place to prevent absolute power by any one branch of government.” Reid had a change of heart because he believed his party would hold power for a long time. What Democrats didn’t expect was a Donald Trump victory. 

 

And no president faced as much “obstruction” as Trump did. The Senate GOP, for example, had to break filibusters and end debate on judicial nominees over 300 times during Trump’s single term. All previous presidents combined had faced only 244 roll-call votes to advance nominees over a filibuster.

 

During the Obama years there was endless grousing about the GOP’s “unprecedented obstructionism,” which fueled calls for the end of the legislative filibuster. And yet when Republicans and Mitch McConnell had complete control of Washington, from 2017 through 2018, the Senate leader never threatened to end it. 

 

Nor did Democrats have any compunction about filibustering Trump’s border wall, a bill banning abortions after 20 weeks, or the Republicans’ bill that would have begun holding doctors accountable for letting infants who survive abortions die. Who were the nihilists now? 

 

Democrats also filibustered Tim Scott’s police-reform bill, after Republicans had offered to allow the opposition as many votes on amendments as they desired. Scott even promised Democrats that he would filibuster his own bill if the GOP didn’t keep its promise. Dick Durbin called the effort a “token,” and Democrats used an alleged tool of 20th-century bigotry to stop him. 

 

Even a few months ago, Democrats were still filibustering COVID-relief bills to avoid ceding any credit to the majority. Most Americans may not have understood what was going on because news outlets obscured it. CNBC, for example, ran the headline “Senate Republicans fail to advance coronavirus stimulus bill as stalemate drags on.” A single Republican, Rand Paul, had voted against the measure. The difference between “obstruction” and “stalemate,” it seems, depends solely on where the parties sit. 

 

No one should begrudge the Democrats’ ability to use the filibuster, but we should note the obnoxious hypocrisy of their position. When Trump became president and Democrats were in the minority, 30 Democratic senators signed a letter promising to protect a 60-vote threshold. Today, no such letter exists. As soon as Joe Biden won in 2020, “obstruction” was again a terrible blight on the future of democracy. Senator Jeff Merkley, one of Washington’s leading advocates of weakening representative American democracy, said, “Democrats would be insane to allow this to continue. We have to level the playing field for the people. We’re absolutely not giving McConnell a veto against the priorities of Americans.”

 

And so, the filibuster’s future now hinges on the vagaries of partisan politics and the principles of senators such as Joe Manchin and Kyrsten Sinema, both of whom have said they oppose eliminating the practice. Yet, as we know, in Washington there are no guarantees of principle — certainly not in the case of the mercurial Manchin. Perhaps the most dangerous vote the country now faces is one that destroys a tool that tempers majoritarianism. Despite the many arguments that progressives offer, the effort to eliminate the filibuster is little more than a cynical, short-sighted power grab that erodes proper constitutional governance.