Why the Filibuster Must Be Saved

By Charles C. W. Cooke

Wednesday, March 17, 2021

 

Egged on once more by the ambitions of Lady Macbeth, Joe Biden has weakened his commitment to the filibuster. It now falls to two members of his party, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, to save the Senate as we have known it.

 

And save it they most assuredly should. The two most frequent criticisms of the Senate filibuster are that it is “not in the Constitution” and that it is “undemocratic.” On a superficial level, both of these charges seem correct. And yet, when one gives them a little more thought, one soon realizes that there is a great deal more going on here than meets the partisan eye. Indeed, when one gives them a little more thought, one realizes that, far from subverting our system of government, the contemporary filibuster plays a vital role in its preservation.

 

By explicit and hard-fought design, the United States Constitution created a federal government of limited and delineated powers, while leaving all remaining inquiries to the states. In the modern era, we have mostly forgotten this, having come instead to conceive of Congress as an omnipotent national parliament in which all meaningful questions are resolved. But to forget is not to obviate, and it remains the case that, by law, our Congress is charged with handling a small handful of truly national questions and with staying silent on everything else.

 

This complicates the question of “democracy.” Naturally, if Congress were a national legislature, in which all matters of consequence were meant to be uniformly resolved, the structure of the Senate would pose a problem. If, for example, the sparsely populated states of Wyoming and Vermont were able to prevent the heavily populated states of California and Texas from setting their day-to-day policies, the United States would seem politically lopsided. But Wyoming and Vermont cannot do that — indeed, they cannot even try. Under the American system of government, there is absolutely nothing that blocks populous states such as California and Texas from passing whatever laws they like at the state level. On the contrary: Those states have carte blanche within their borders and meet resistance only when they try to set national rules that affect everyone else. When critics of the filibuster propose that the Senate is “undemocratic” — and when they add that it is made even more so by the filibuster — what they really mean is that the federal system, which requires differing levels of buy-in at different levels of government, ought to be weakened.

 

Or, I should say, that the federal system ought to be weakened even further. It is an unfortunate fact of American history that, over time, the enumerated-powers doctrine that James Madison considered to be the beating heart of the Constitution has been expanded to the point at which Congress is far, far closer to being a national parliament than it was ever supposed to be. Given that the Constitution is our highest law — and given that the Constitution has not been amended to allow Congress such power — this development presents a problem per se. But it also presents a practical challenge when, as is currently the case, the country is so starkly divided. The primary purpose of the American constitutional order is to ensure that a diverse array of people — people who often have wildly different political, religious, geographical, and other needs — can live happily under the same flag.

 

Which is where the Senate and the filibuster come in. The filibuster is not mandated by the Constitution. But it is allowed by it. And, for a long time, American senators have used it to mitigate the ill effects that have been caused by the degraded enumerated-powers doctrine and the absence of national consensus. Advocates of the filibuster are often told that James Madison himself was not wild about the Senate as an institution, and that, having conceded that it would be necessary as a compromise, he insisted that it must operate on a simple-majority basis. This, of course, is true. But it is not the whole story, for Madison also considered the hard limitations on what the national government may do to be utterly indispensable. By using an explicitly defined constitutional provision — Article I, Section 5, which holds that “Each House may determine the Rules of its Proceedings” — the members of the Senate have for decades ensured that their institution requires considerable national buy-in before major changes are made, and, thus, have restored, rather than undermined, the system as it was originally designed.

 

At some level, Democrats must understand this — not least because they spent the first two years of the Trump administration enthusiastically filibustering everything they possibly could in the name of the “Resistance.” Back in 2017, 31 of the 48 senators in the Democratic caucus signed a bipartisan letter, penned by Susan Collins (R., Maine) and Chris Coons (D., Del.), that unashamedly made an abstract case for the 60-vote bar. That letter, which itself received 60 signatures (a filibuster-proof majority!), was contrived to “to protect an important tradition of the Senate that recognizes the rights of the minority and makes bipartisan legislation more likely” and to “heal the wounds between our two parties”; stressed the importance of preserving the “existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate”; noted the “unique role the Senate plays in the legislative process”; and sought to kill “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate.”

 

Nothing of consequence has changed since 2017, and yet the tone of the Democratic Party has turned apocalyptic. Four years ago, Ed Markey of Massachusetts happily signed the letter; now, echoing many others in his party, he argues that the institution he backed is an outdated tool of slaveowners. What, other than the fact that his party is now in the majority, rather than in the minority, could have changed his mind? It can’t be Mitch McConnell, for, despite Joe Biden’s craven insistence that reform is now necessary because “democracy is having a hard time functioning,” it remains the case that the Republican Party has not used the filibuster once since 2014, and that, despite Senate Democrats’ having used it prolifically between 2017 and 2019, McConnell honorably withstood President Trump’s calls to get rid of it. Could it be that Markey just wants what he wants?

 

If so, he is unsuited to his role. We are presently so divided as a nation that the mere election of a new president or Congress sends half the country into panicked paroxysms, primal screams, and vague talk of secession and civil war. If, in response, there are to be reforms to the system, they ought to be intended to limit the minority’s exposure to federal power, not to increase it. I daresay that, if Joe Manchin and Kyrsten Sinema were to cave to partisan pressure and usher in the nuclear option, Senator McConnell and his caucus would indeed run the table next time the Republican Party takes full control of D.C. I daresay, too, that, as a conservative, I’d like many of the results of such a blitz. But the system that it would leave us with — a system in which the national parties vie for narrow control of Congress, grab hold of the pendulum once they’ve attained it, and then punitively micromanage matters that are the legal preserve of the states — is not a system any of us should wish to cultivate. There is great wisdom in the filibuster. It would be a seraglio of fools that relieved us of it.