Editor’s note: It has been our great privilege to publish dozens of articles over the years by Jeffrey Bell, and it was with great sadness that we learned of his death over the weekend. You can read a tribute to Jeff by his colleague Rich Danker elsewhere on this page (as well as other tributes, from when he was still with us) and we shall have more to say in the coming days on his storied career as a political consultant. (If you haven’t already, go read his wonderful essay about Reagan’s briefing book and watch Bill Kristol’s long conversation with him about the Republican party and the conservative movement.) He was an original thinker, a graceful writer, a generous man, and a gentleman through and through—increasingly rare traits in the profession he chose and in Washington more generally. This was the last article he wrote for publication.
Republican politicians face a binary choice: They can either stand up for constitutional principles, or they can preserve the status quo and maintain the arcane Senate filibuster rules. At its core, this is a showdown between politicians who are high-energy and courageous versus those who are low-energy and timid.
For many years, the timid have been running Capitol Hill, and they do so enabled in part by the Senate’s filibuster rule—largely an accident of history. It gives cover to those who are afraid to take up important issues. It is the chief reason why the current congress has so often been accused of being “do-nothing.”
In contrast, President Trump won office by projecting strong leadership and the promise of great accomplishments. Consistent with that, in his inaugural address he declared, “January 20, 2017, will be remembered as the day the people became the rulers of this nation again.”
But that will not happen if the filibuster rule remains in place. As the president tweeted, “If Senate Republicans don’t get rid of the Filibuster Rule … few bills will be passed.” In that regard, it is interesting that the two biggest game-changers in this Congress—the tax reform bill and the confirmation of Neil Gorsuch—came on issues where the filibuster no longer holds sway.
In 2016, then Minority Leader Harry Reid previewed this, promising that, if the Democrats take back power, they will go to “a majority vote determining stuff. It is going to happen.” In fact, the trend has been to phase out the rule by carving exceptions. In recent years, the Senate has excluded from the rule budget resolutions, appointment confirmations other than for the Supreme Court, and in 2017 Supreme Court nominations.
At issue is the requirement, found in Senate Rule 22, that 60 senators must agree to end debate on a bill, and thereby permit the Senate to vote on it.
Proponents of the rule invoke Senate tradition. But that argument has been thoroughly debunked. Brookings Institution senior fellow Sarah Binder testified before Congress that in 1789 both the House and Senate rulebooks provided for a motion for a simple majority to end debate and bring a matter to a vote. The House kept its rule, but through peculiar circumstances the Senate did not.
According to Binder, the Senate retained the filibuster in response to an 1805 recommendation by vice-president Aaron Burr that the rulebook be simplified, not due to some sort of legislative principle.
Senators did not actually use the filibuster until 1837. Still, through mid-century there were few filibusters. As the country entered the Civil-War era, the use of the filibuster increased.
In 1917, facing the World War, President Wilson pushed for a solution. A bipartisan committee was formed. As Binder reports, “Five of the six Democrats supported a simple majority rule; one Republican supported a supermajority rule, and one Republican preferred no rule.” Apparently seeking consensus, the committee compromised: The senate would pass a rule that debate could be ended (“cloture”) if two-thirds of the senators agreed to do so. In 1975 the Democratic majority lowered the bar from 67 to 60 votes.
The 60-vote requirement is aggravated by another recent development: the creation in 1975 of the paper filibuster whereby a senator doesn’t actually have to stand and speak for hours and hours. He simply announces his intention to filibuster. Not surprisingly, there is now an increased willingness to apply the filibuster.
Other concerns militate strongly in favor of a simple majority rule.
The Constitution does not provide support for a supermajority rule. Rather, it puts the Senate on the same footing as the House. Moreover, it specifies instances in which a supermajority is necessary (for example, two-thirds votes in the House and the Senate to overcome a veto or to propose Amendments to the Constitution and “two-thirds of the Senators present [to] concur” on treaties). If anything, the Constitution’s premise is that the Senate would proceed with a simple majority on legislation.
The supermajority rule impairs both the functioning and accountability of Congress. It enables senators to shroud their true intentions from citizens. Often a senator can co-sponsor legislation, confident that it will never be brought to vote or even to debate.
Likewise, as Byron York observed with regard to the recent Obamacare repeal debacle, the filibuster affects how legislation in shaped in both the House and Senate:
Ironically, the filibuster rule does not in any way preserve some great tradition of debate or encourage dialogue. Quite the contrary. It diminishes floor discussion as there is none during the paper filibuster. To that end, Rick Manning, president of Americans for Limited Government, argues that the rule shields senators, increasing numbers of whom are over eighty, from the “physical task” of being a senator, of taking the floor to flesh out their positions and the concerns of the citizens of their states. As Manning argues, “ending the filibuster will do more to ‘Drain the Swamp’ than any election cycle could do.” That’s a thought shared by other commentators.
But will conservatives, or Republicans for that matter, regret ending the rule?
Likely not. By suppressing true debate, the rule favors progressives. They dominate the mainstream media, Hollywood, academia, and the Administrative State’s PR machine. Talk radio and the Internet provide outlets for conservatives and libertarians, but the elite enjoy a near monopoly in engaging those who do not closely follow politics. The absence of true debate lets their narrative remain in place. By sharpening the issues, conservatives and libertarians tend to do better, as witness the 2016 presidential election and the 2010 and 2014 Congressional elections versus the 2008 and 2012 presidential elections, when GOP nominees tried to defeat Barack Obama by staying in the center.
There are two other swamp issues.
First, the filibuster rule curtails the ability of Congress to fulfill its constitutional duty of providing a check on the executive branch—against the bureaucracy as well as the numerous independent bodies. The need for a check arises when an agency—as, for example, the Department of Education, EPA and IRS in recent years—has overstepped its authority. It can also arise when Washington engages in an authorized activity that was not foreseen by Congress or to which citizens now object, such as increased federal meddling in education.
Second, Congress largely developed the administrative state—the swamp—between 1913 and 1975. It was created before the paper filibuster, when the filibuster simply impaired but did not destroy majority rule. The paper filibuster prevents strong legislation and thus locks in place the administrative state.
It is hard to envision the return to meaningful citizen-directed government so long as the filibuster rule remains intact. Its fate lies with Senate Majority Leader Mitch McConnell. History will rightly remember him for holding the line on President Obama’s Supreme Court nominee, and thereby setting the stage for President Trump’s nomination of Neil Gorsuch. But to win the Gorsuch nomination, McConnell had to abolish the filibuster for Supreme Court confirmations. Will history also remember McConnell for reclaiming the Senate’s constitutional power on all other issues where the filibuster prevents not just Senate action, but needed policy changes by the 115th Congress as a whole?
Jeff Bell, a political giant, a champion of all things supply-side, a visionary who understood the practical and ethical importance of social conservatism, an author, a strategist, a devout Catholic, a loving husband, a wonderful father, and a loyal friend, passed away over the weekend. Bell was a co-founder of American Principles Project.
Emmett McGroarty is a senior fellow at American Principles Project.
