July 18, 2024

Don’t be so fast to scrap the filibuster

Justice. Judge hammer on the table

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By Bloomberg Opinion

The U.S. Senate has been asked to vote on contentious bills to tighten gun controls and reform the country’s electoral systems. As things stand, these and other measures, strenuously opposed by Republican legislators, are unlikely to become law even though Democrats control the presidency and both chambers of Congress. The reason is the filibuster — the Senate rule that requires 60 votes to end debate and pass a bill.

Democrats have good reason to object to the filibuster, and they’re certainly right to deplore its abuse in recent years. They have a compelling case for changing the rules so that blocking the majority is harder.

But scrapping the filibuster altogether, as many Democrats now favor, would be bad for the country — and a mistake they’d almost certainly regret in the not-too-distant future.

The filibuster’s critics say the rule is anti-democratic. That’s true. It’s supposed to be. Although the rule is not part of the Constitution, it’s of long standing, and its purpose reflects the Constitution’s deliberately anti-majoritarian design. The Senate was never intended to be just a second House of Representatives. Its role is to impose deeper deliberation on a system that might otherwise move too hastily, to give great weight to the concerns of the minority, and to create institutional pressure for consensus. But rather than using the filibuster sparingly and responsibly, both parties have deployed it reflexively.

The result — endless gridlock — isn’t better government. It breeds contempt for Washington, and creates a dynamic that, far from encouraging consensus, works against it. When neither party expects to get anything done, promises don’t matter. And why sweat the details of policies that won’t ever be put to the test?

Even so, it’s wrong to conclude that the filibuster should just be scrapped. For one thing, Democrats should be careful what they wish for. In 2013, Senate Majority Leader Harry Reid effectively eliminated the filibuster for executive-branch and judicial appointments — except to the Supreme Court. This made it easier for President Donald Trump to transform the federal judiciary. In 2017, Senate Republicans extended the reform to the Supreme Court, and used it to confirm Trump’s nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

In 2021, many Democrats again seem to believe that they’ll retain their Senate majority forever. History says different, and more is at stake than temporary partisan advantage. As polarization worsens and the political center shrinks, Democrats and Republicans alike should imagine the consequences for the country of successive unchecked majorities — pushing without compromise first in one direction, then the other. It’s a formula for economic failure, volatile social policy and mounting popular rage. Scrapping the filibuster would bring this fate closer.

Far better to fix the filibuster than abolish it. The rules are complicated and could be adjusted in many ways — but it’s clear what the focus of such changes should be. The filibuster should be a lot harder to deploy — and should make senators think long and hard before attempting to do so.

Under the current rules, the minority can block legislation at many different points and at no cost to itself. Its members don’t even need to be present — nor to utter a word in opposition. The filibuster, which was intended to allow for greater public consideration of an issue, has instead become a device for preempting it.

If a large minority of senators believe so strongly that a bill should not pass, they should be able to organize themselves and take to the floor — and hold it, allowing the public to see that they are blocking all other business. If public sentiment turns against them, or if they can win concessions, they will find it increasingly hard to hold their coalition together. That is how the 1964 Civil Rights Act passed, after a 60-day filibuster.

Rather that simply restoring the filibuster of old, the Senate should improve it. Well worth considering is the proposal that instead of requiring 60 votes to bring debate to an end, the Senate should require 40 votes to extend debate further, which puts the burden on the minority to be present in the chamber. The blocking threshold could be changed, too — to 55 votes, say, to stop debate.

Scrapping the filibuster altogether is a more dangerous step than most Democrats realize — a risky short-term gambit that would be replete with unintended long-term consequences. But mending the rules is both necessary and feasible. It isn’t too late for the Senate to rediscover its purpose as an agent of compromise in the national interest — and repairing the filibuster is the perfect place to start.

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