Democratic presidential candidate Joe Biden and Democratic Senate Minority Leader Chuck Schumer are both now threatening a potentially perilous power grab if their party sweeps the elections this fall. Should they follow through, their threats to eliminate the Senate filibuster could upend the delicate balances that keep our constitutional system stable.
The filibuster, of course, is the longstanding Senate rule that allows 41 of the 100 senators to extend debate indefinitely on a bill or resolution, effectively blocking the proposal from passing. A staple of Senate procedure for two centuries, the filibuster ensures the privileges of a sizable minority against precipitous action by a bare majority. Used correctly, it promotes bipartisan consensus-building so matters of great weight will not be decided in fits of temporary partisan passion.
On Tuesday, Schumer reiterated his stance that “nothing is off the table” procedurally if Democrats regain a Senate majority. And Biden, for decades a defender of Senate traditions and a consistent proponent of the filibuster throughout the Democratic primary season, suddenly said last week that he would “take a look at” eliminating the filibuster if he is president and Republicans become “obstreperous” in their opposition to his agenda.
Of course, every president in history has thought that opposition to his agenda is a sign of obstreperousness. But until now, presidents have been forced to accept the existing rules as a crucial bulwark against radicalism and even tyranny. What gives Biden and his Democratic allies the moral authority to decide that their agenda is so much more important than any other presidential agenda in history?
These Democrats would say their plan to make an end-run around existing Senate rules in order to change the rules is justified by the precedent that Senate Democrats created in 2013 for judicial and executive branch nominations. They might even argue, somewhat disingenuously, that Republicans made this inevitable in 2017 when they expanded the Democrats’ rule on nominations to cover Supreme Court appointments.
But this is all nonsense. Let’s set aside the complicated history of these recent maneuvers — mostly of Democrats abusing comity and Senate tradition. Regardless of whose fault any of this is, there are excellent substantive reasons in the founders’ commentaries in the Federalist Papers for why presidential nominees should be confirmable by simple Senate majorities, whereas ordinary legislation should face a higher bar.
Until 2003, the Senate’s traditions reflected the founders’ philosophical and logical framework in this regard — and today, they do so once again. Both showed deference to the president’s prerogative to have his own staff and his own judges installed unless they were sufficiently objectionable as to lack majority support. Indeed, before Democrats did it in 2003, no Senate minority had ever used the filibuster to permanently defeat a single judicial nominee who enjoyed the support of a majority of senators. Not even once.
The filibuster on ordinary legislation, however, has a distinguished pedigree. While not part of the Constitution itself, the rule originated through the recognition that all members should have the right to debate legislation fully. It is an echo of the provision in Robert’s Rules of Order (the basic framework of which is used by almost every corporate and volunteer board in America) that requires a two-thirds majority to end debate by “calling the previous question” and bringing a matter to a final vote. (See Rule 29, here.) This bar was subsequently lowered in the U.S. Senate to three-fifths, meaning 60 out of 100 senators elected and sworn.
This salutary respect for full debate and minority procedural rights should not be changed in an eruption of pique, and certainly not without a strong bipartisan consensus to do so. If the Senate wants to modify the filibuster rule in some way, it should be through a reasoned, careful, bipartisan accord, not because one party wants to jam changes down the throats of the other.
One further consideration is that Democrats would surely come to regret such an action, just like they did after they invoked the so-called nuclear option on judges in 2013. Contrary to their own smug belief, they will not hold power forever. Someday, whatever form it takes and wherever the issues have migrated by then, Republicans will control Washington. A simple-majority Senate would allow them to undo scads of legislation extending back to the Great Depression.
A simple-majority Senate primarily endangers Democratic priorities and Democrat-loved bureaucracies. After all, Democrats are the party of big government, and it takes only a few moments for the jackhammer to destroy irreparably the finely wrought cathedral that took decades to build.
The possibilities would be limitless for a Republican administration with even just two years of a somewhat conservative Congress like the one that existed in 2017. For example, what if a simple majority could repeal the National Labor Relations Act and pass in its place a national “right-to-work” law? Labor unions could become extinct overnight and nearly impossible to revive by the time Democrats regain power.
The Department of Education? Gone. The bureaucrats fired or transferred to the Patent Office, the building sold and converted into condos within six months.
In fact, thousands of government buildings and millions of acres of government land could be sold to repay debt — and good luck getting all those buyers to sell them back.
And we’re only just getting started. A simple-majority Senate could dismantle and shred much of the modern welfare state to the point that it would take an entire presidential administration just to start putting it back together.
In short, everyone benefits from a certain level of stability in government, and until now, this is something the Senate’s supermajority requirements have helped preserve. If Democrats open this Pandora’s box, they must know they have a lot to lose.
