Get rid of the filibuster

The founders never intended for a Senate minority to have a veto over legislation.

I’ve long been an opponent of the filibuster. I’ve advocated for its abolition when it would benefit Democrats. And I’ve advocated for its abolition when it would benefit Republicans. To me, it is not a matter of partisan maneuvering. It is a matter of good governance and restoration of what was intended to be the constitutional norm about legislating.

This government shutdown illustrates how the filibuster fails to deliver its purported benefit. It does not promote consensus and stability in government policy. Instead, it results in a paralytic Congress hunkered down in partisan bunkers and muddles democratic accountability.

The Constitution specifies five matters for which an extraordinary legislative majority is required: to override a presidential veto, an impeachment conviction, to ratify a treaty, to expel a member, and to refer a constitutional amendment. By inference, all other congressional business was to be conducted via a simple majority.

Defenders of the Senate filibuster portray it as some venerable tradition essential to the character of the institution. That’s a gross mischaracterization of the virtual filibuster we have today.

What is known as a talking filibuster, when a senator actually takes the floor and yaps incessantly, was very rare until the late 19th Century. It was infrequent from then until the 1970s, when the virtual filibuster was created.

In a virtual filibuster, no one actually filibusters. Instead, the minority party pretends it is going to filibuster and the majority party pretends to believe it. The virtual filibuster, rather than being the infrequent occurrence the talking filibuster was, is now routine. It now requires an extraordinary majority to pass almost any substantive legislation in the Senate.

In effect, the virtual filibuster gives the minority party in the Senate a veto over legislation. That’s contrary to the intent of the founders. While the Senate was intended to be the more deliberative body, the minority wasn’t supposed to be able to prevent the body from acting. As Hamilton put it in Federalist No. 22, the “fundamental maxim of republican government … requires that the sense of the majority should prevail.”

So, the virtual filibuster isn’t a venerable Senate tradition and its grant of a veto to the Senate minority is contrary to the constitutional order. The remaining argument of its advocates is a pragmatic one. According to them, the virtual filibuster promotes compromise and consensus, and thus stability in government policy.

This government shutdown illustrates how, in practice, the virtual filibuster does the opposite. How it drives both the majority and minority parties into partisan bunkers.

With a virtual filibuster, if the minority can stay together, it can prevail, or at least keep the majority from acting. That puts great pressure on individual members of the minority not to break ranks or cut their own deal with the majority. Deal making occurs at the leadership level. The pressure is also on individual members of the majority not to undercut the leverage of their leaders in that deal making by breaking ranks.

The opportunity for compromise and consensus is sharply reduced by narrowing how, where, and when it occurs. It stifles deliberation and negotiation by reducing individual members to bystanders whose principal role is to maintain unity to maximize the leverage of their leaders. That’s not how the founders envisioned the Senate functioning.

The virtual filibuster also muddles democratic accountability. So, who is responsible for this ridiculous government shutdown? Republicans say Democrats are responsible because they won’t agree to a short-term continuing resolution mostly at current spending levels. Democrats say Republicans are responsible for not agreeing to higher Affordable Care Act subsidies as the price to obtain the necessary Democratic support in the Senate. There is merit to both arguments.

Now, let’s consider an alternative world in which the virtual filibuster doesn’t exist. The government would be open and operating at whatever level, under whatever conditions, and for whatever duration Republicans could muster the votes for. Whether the electorate liked or disliked the result, responsibility would be clear: It would be the product of the GOP leadership and the individual members who voted for the legislation.

ACA open enrollment begins Nov. 1. Without the virtual filibuster, if there were a premium increase shock with political reverberations, the blame would clearly lie with the GOP. With control of the White House and both chambers, whatever the ACA premiums turn out to be would be GOP policy.

With the virtual filibuster, the GOP has at least some small measure of blame avoidance. We were always happy to negotiate over ACA premium subsidies, they will say, but only after Democrats voted to reopen the government.

Without the virtual filibuster, there would have been intense pressure within Republican ranks to take action on the ACA premium subsidies well before the start of ACA open enrollment on Nov. 1. President Donald Trump, in particular, wouldn’t have wanted to take what would have been clear responsibility for the coming premium shock.

However, chances are, given the hostility to the ACA among the GOP rank-and-file, there wouldn’t be sufficient Republican votes to continue with the enhanced premium subsidies. Trump and the GOP leaders would have had to turn to Democrats for the votes necessary to avoid the premium increase shock.

In other words, without the virtual filibuster, Democrats probably would have already obtained the policy outcome they are using the virtual filibuster and the government shutdown in hopes of achieving.

Both parties have been carving exceptions to the virtual filibuster. Way past time to get rid of it entirely.

Reach Robb at robtrobb@gmail.com.