Why Scrapping the Senate Filibuster Option Would Be A Bad Idea

In the recent days and especially today, an ancient practice of the US Senate known as “filibustering” has come under attack by President Trump on Twitter, blaming it for the lack of progress and success of his administration. And he isn’t exactly alone in doing so.

The “filibuster” has never been popular with the ruling party and is usually a key weapon of the opposition party. When Democrats were in power, they hated the filibuster as it stalled all their agenda and Republicans constantly utilized it. But now, Democrats are the ones who are benefiting the most from the power to filibuster and Republicans are the ones who are being injured by it.

For those who don’t know what exactly a filibuster is, here’s a quick breakdown. Basically in the Senate, debate and floor proceedings go on for as long as all the members want. And a filibuster is when a single Senator could hold the debate floor for as long as he wanted and could prevent any action from taking place as long as he held the floor. In 1970 however, the Senate made a rule change that allowed for the Senate to stop a filibuster as long as 60 of its 100 members agreed to stop the debate and move on with business. Since then, the opposition party has used this option so much that for anything major to pass the Senate, 60 votes is now seen as the default threshold.

When Republicans were a minority in the Senate and controlled more than forty of the Senate seats, they were able to block much of the Democrats’ agenda. In fact, they even blocked nominations for the executive branch and judicial appointments, leading the Democrats to make some modifications that allowed them to make these nominations exempt from filibusters (excepting Supreme Court nominations). While Republicans railed against this “encroachment”, they quickly embraced it after they became the majority party and gained control of the White House in 2016, using this tactic to confirm most of Trump’s nominees. However, faced with a contentious Democratic opposition to Trump’s Supreme Court pick, Senate Republicans modified the rules again to include Supreme Court nominations in the list of activities that can’t be filibustered in the Senate.

Even still, Democrats have been able to use filibusters to stall Republicans and will likely continue to use them through the next few years. The tactic of filibustering seems wrong to many and for people like President Trump, it not only seems inefficient, but also seems to be another manifestation of the DC swamp. Senate Majority Leader Mitch McConnell has so far resisted Trump’s demands to do away with the filibuster and I hope he continues to do so because the filibuster isn’t just a tool used for obstruction, is a vital part of the uniqueness of the Senate.

There’s a reason we have two houses of Congress and not just one single legislative body like we did when we first declared independence from the British in 1776. Both houses of Congress represent two different types of representation. The House of Representatives is a majoritarian institution while the Senate is an institution of the minority. Confused? Let me break this down for you in even simpler terms.

The House of Representatives is considered “majoritarian” because a simple all bills and are passed by a simple majority, meaning anything above 50%. Furthermore, the House of Representatives was also designed to slightly favor bigger and more populous states over small ones. For example, Texas and California have much more representatives than a Wyoming or North Dakota and thus have more clout.

The Senate, on the other hand, it the opposite. Most senators try to work on a consensus basis and originally, even one opposing voice could shut the Senate down. Now, you need at least 41 opposing voices (still less than half) to shut down the Senate, meaning a minority party could theoretically still somewhat control policy creation in the Senate. Also, each state receives the same number of senators regardless of their population, meaning a small state like Rhode Island has the same weighted amount of representation as California does.

These two different styles are no accident. When the US Constitution was being drafted, there was a huge debate on how delegates were to be elected to the new Congress and whether each state should get an equal number or if each state should get different numbers based on their population. The bigger states attending the Constitutional Convention obviously wanted the second option because it would give them more clout but the smaller states wanted the first option as it gave them equal standing. Ultimately, the writers of the Constitution developed a compromise where they created two different houses and made each one to fit one of the two choices.

Of the two institutions, the Senate has probably been the most evolving. First, senators were no longer elected by state legislatures and were instead elected by the voters of their states. Then, the Senate threw out the ability of a single member to filibuster and block the progress of the entire Senate by allowing debate to be ended with a 60 vote majority. And now, even parts of that are being chipped away but that doesn’t mean we should continue the process of eroding the power of the filibuster.

The filibuster is integral to the Senate’s tradition and while this does make the Senate much slower in passing legislation, it also show cases the Senate’s role as being a more deliberative body that provides a check on the House of Representatives, as well as on the executive through their role in approving treaties and executive appointments. The key mantra for the Senate when changing the rules is to always remember that one day, you could be put in the minority by an election. This is why Democrats erred under Harry Reid when they allowed nominations to be exempted from being filibustered and at the time, it made it much easier for them to get President Obama’s appointments confirmed. But you can bet they all rued that decision after Republicans used that same strategy to confirm Trump’s nominees over their objections.

It may be frustrating for President Trump and Congressional Republicans since they can’t get much done right now. But if they are patient and wait, the Republicans could win back a larger majority in the Senate after the 2018 mid-terms and may even get a filibuster proof majority of 60 seats or more. However, suspending the ability to filibuster will be a very dangerous mistake. The Republicans may score some short term wins by getting much of their key agenda passed this year. However, the Republicans only have a two vote majority and imagine if they lose those seats in 2018. The Democrats will then have complete control of the Senate thanks to rules Republicans made and any future Republican proposals will be completely scrapped.

So keeping the Senate filibuster is a wise choice that ensures Republicans will maintain control of the Senate, regardless of the 2018 election (unless it’s a massive Democratic landslide which I really don’t see happening).

Follow Publius Tacitus on Twitter at @PCTacitus

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