Busting the filbuster
Save the Senate rules for legislation, not confirmations
On Friday the Senate Republicans confirmed Judge Neil Gorsuch to the Supreme Court. In so doing, Majority Leader Mitch McConnell changed the rules of the institution to prohibit a Democratic filibuster.
What to make of this development?
The filibuster, long a part of Senate tradition, has become increasingly important in the past 30 years. While it only takes a simple majority of 51 senators to pass a bill through the chamber, a supermajority of 60 senators is required to end debate before an up-or-down vote occurs. In the real world, this is a distinction without a difference, but it is a big deal in the U.S. Senate. It means that a minority of just 41 senators can effectively kill a piece of legislation by talking it to death.
At first blush, this may seem unfair. After all, this is the United States of America, where the majority is supposed to rule. It is flat wrong for a minority to halt the legislative process in this way.
To the contrary, one of the original purposes of the Senate was to thwart popular majorities. At the Constitutional Convention in 1787, delegates from large states like Pennsylvania and Virginia wanted both chambers of Congress to be apportioned by population. But the small states objected, arguing that this would effectively shut out states like Delaware and New Hampshire.
Thus, the “Great Compromise” was hammered out: The House would be apportioned by population, while each state would get two seats in the Senate, regardless of the state’s population.
Our system of government, therefore, has never been democratic — at least not strictly speaking. The very design of the Senate has always given popular minorities an opportunity to participate in the legislative process.
The filibuster is of a piece with the design of the Senate. The Framers of the Constitution did not fuss over the details of legislative procedure, and instead gave each chamber of Congress supreme authority over its own rules. The filibuster was first employed about 20 years after the Constitution was ratified. The rule has hung around, in one manner or other, ever since. And for good reason. After all, the idea that a minority of 41 senators can stop legislation reinforces the function the Senate serves in our constitutional schema: To become law, a proposed piece of legislation must have broad and durable support.
No doubt, the filibuster makes it harder to govern the country when the people are evenly divided, as we are these days. But is that really such a bad thing? Contrast the persistent gridlock in the United States to the referendum in Britain to leave the European Union. That far-reaching, profound decision was made by the slightest of majorities — just 51.9 percent support to 48.1 percent opposition.
In our system of government, it is virtually impossible for 51.9 percent of Americans to dictate much of anything to 48.1 percent of Americans. In my opinion, this is one of our country’s greatest assets, not a liability. It is unwise to pass sweeping legislation with narrow, fleeting majorities. The design of the Senate makes that less likely to happen, and so also does the filibuster.
Still, there are certain tasks the Senate is obliged to carry out, regardless of how polarized the country may be. It must, for instance, confirm members of the executive and judicial branches. It must also work in conjunction with the House to raise revenue and appropriate money. These tasks are necessary for the day-to-day functioning of the government. Senate minorities should not be allow to gum up the works on these sorts of essential matters.
So, eliminating the judicial filibuster is probably a good thing. Senators may also consider eliminating it from appropriations bills. That way, a minority of senators could continue to halt changes they judge to be bad for the country, without interrupting the government’s essential business.
Jay Cost, a senior writer for The Weekly Standard, lives in Butler County (JCost241@gmail.com, Twitter @JayCostTWS).