Preserve the Legislative Filibuster

Jonathan Chait is criticizing Senate Minority Leader Chuck Schumer for allegedly giving private assurances to the Republicans that he will not eliminate the legislative filibuster if the Democrats regain a Senate majority after the November midterm elections. He makes a strong argument but I’m ultimately unconvinced that Schumer has made either a strategic or a tactical mistake.

Mr. Chait ultimately thinks that any supermajority requirement is undemocratic in nature and that if such a requirement is ever justified it is for lifetime appointments to our judiciary. We currently have the exact opposite situation in the Senate, where judges can be confirmed with a simple majority but most legislation requires sixty votes. This is Chait’s strongest point.

I think the root of our disagreement is over the very nature and existence of the Senate. For me, it has never really made sense to talk about the Senate as a democratic institution. It is a political institution. As far as being a representative institution, it is not historically or by design representative of the people. It is a corrective to democracy rather than a participant in it. When Wyoming has the same proportional power as California, that is not in any way a system of one person/one vote. So, if you’re committed to democracy, you should talk less about arcane or idiosyncratic Senate rules and more about abolishing the institution altogether.

Of course, the founding fathers made sure that the Senate could never be abolished without the consent of the states that benefit the most from their disproportional power within it, which means that effectively the Senate will always be with us.

It’s not very fruitful or interesting to have theoretical discussions about things that can never happen, so even if the Senate should be abolished there’s not much point in harping on it. A better discussion is to talk about the positives of the Senate. If we are to be forever saddled with a perverted House of Lords, how can it do us the most good? What doesn’t make sense is to argue that it can be made more democratic or more representative. You can’t make a body representative when Texas and Rhode Island have the same relative power. It’s dishonest to suggest that a 51-49 vote in the Senate always or by necessity represents the will of the majority of the people. In effect, the very design of the Senate is to create a kind of national consensus, where anything that is too vexing to any region or even a single state can be stopped.

This is reflected not only in the unrepresentative composition of the members but in the rules themselves. Mr. Chait is correct that the filibuster rule is not written in the Constitution and can be and has been changed repeatedly over time. But the chamber operates by unanimous consent, meaning that all 100 members have to agree to any motion to proceed to a new piece of business. The filibuster rule is really, at heart, nothing more than a framework for overcoming the objection of a single senator. If there are 39 or 49 senators objecting, the basic principle is no different.

Once a senator objects, that cannot be the end of the story or nothing could pass without the total unanimity of the members. So, there’s a process set up for overcoming that objection. If you’re interested in how this is presently done, you can read Rule XXII of Standing Rules of the United States Senate which covers cloture and the thirty-hour rule. At the moment, three-fifths of the Senate must agree for a single senator’s objection to be overcome.

There’s a reason this set of procedures has broken down in recent decades. In the 1970s, it became necessary to carve out an exception to the three-fifths requirement for budgetary issues, since the prospect of a gridlocked Senate imperiled their ability to pass any budget at all. More recently, the Republicans denied the Democrats unanimous consent on so many administrative nominees and lower court judges that it wasn’t possible to fill the positions. Eventually, Harry Reid had to change the rules just so the government and the courts could be staffed at all.

Most recently, the Republicans extended the exception to Supreme Court nominees so they could seat Neil Gorsuch.

Mr. Chait is correct to note a basic lack of logic in the result, which is that it’s easier to put someone on the Supreme Court, where he or she may sit for decades, than it is to pass a spending bill for a single fiscal year. But, even granting a certain absurdity to how this has unfolded, when we talk about eliminating the filibuster altogether we are really talking about taking away the ability for a single senator to hold up the business of the Senate.

Now, we actually do have a democratic and representative legislature. It’s called the House of Representatives. It serves its purpose and most countries get along fine without having a second far less representative legislature. So, what distinguishes the Senate from the House that might in any way justify the former’s continued existence?

Originally, the senators were elected by state legislatures which made them less directly and immediately accountable to the people. That was the entire point. While the House might go nuts during an ebola outbreak or in the wake of a terrorist attack and pass some really ill-considered legislation, senators, in theory, would not be as afraid of the momentary passions and fears of the people. Unfortunately, answering to a state legislature rather than the people turned out to invite a lot of corruption, so the Constitution was amended and since 1913 senators have been elected the same way as all other legislators.

Having eliminated the primary way of shielding senators from the people, what remained was the six-year staggered terms. In an even year, roughly a third of the Senate faces the electorate. But two-thirds do not. This means that the majority of the Senate is never in the process of seeking reelection and can therefore, hopefully, cast a vote based more on wisdom and less on fear or partisanship or fundraising considerations. This remains the primary benefit we get from the Senate even if the results are consistently disappointing and the positives seem to be diminishing at a steady pace.

The only other thing that distinguishes the Senate from the House is the unanimous consent rule, which makes it possible for even an outnumbered party to force compromise. As Mr. Chait notes, the majority keeps carving out new avenues to overcome this obstacle, but in doing so they are really eroding one of the last rationales for the Senate’s existence.

Instead of the Senate being a place where cooler heads can prevail and regional consensus can smooth out national factionalism, it is becoming just a superfluous and unrepresentative version of the House. Abuse of the unanimous consent rule is the root cause of this, and the root cause of the abuse is that the senators are no longer at arm’s length from the electorate. The financial costs of running for reelection mean that fundraising is a daily concern. The need to satisfy a partisan base to stave off primary challengers means that they’re never free to buck their party. The need to win a statewide popular election means that they can be easily whipsawed by the momentary passions or crises of the day.

There is a very good argument that the Senate should not exist in any form so long as it is made up of two members per state irrespective of population. But it cannot be abolished, so we should get the best use out of it. And we’re not getting it.

Were the legislative filibuster to go away, then the Senate would lose its last useful function because this would effectively disempower every senator’s ability to meaningfully object, and it would do the same for the minority party.

Finally, Mr. Chait is correct that the Republicans benefit from this arrangement more than the Democrats and that most of Trump’s more controversial agenda cannot be passed through the Senate even with a bare majority. Schumer and the Democrats, by this reasoning, should welcome an end to the legislative filibuster because it will ultimately cost very little in the short term and make it much easier to legislate in the future.

But what does Schumer gain by threatening the filibuster? He would give McConnell cover to take away the one piece of leverage his party presently enjoys, which isn’t just the ability to filibuster but the ability to delay. And what does he gain by promising to protect the legislative filibuster? He makes it easier for McConnell to stand up to the president’s persistent demands that he do away with it.

If circumstances warrant it in the future, Schumer can always break his promise. There will be a cost to that, but if he’s willing to pay it then it won’t prevent him from doing what he feels needs to be done.

Personally, I would rather see the filibuster reinstated for judges, maintained for legislation, and eliminated solely for staffing the executive branch, since those positions are temporary and should be filled in a timely manner. If I had my way, the Senate would not exist. But if it is going to exist, at least give it a chance to do what it’s good at doing. Otherwise, it’s just a pointless, undemocratic and unrepresentative collection of blowhards.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.