The days of the filibuster, which has played a starring role in the bitter and escalating partisan battles of the last several decades, are numbered. It isn’t a matter of if one party will get rid of the parliamentary maneuver, but only a matter of when.
“As recently as even a couple years ago, if you had asked me, ‘Should we get rid of it?’ I would have said ‘no,’ because it slows down the growth of government,” Sen. Ted Cruz, R-Texas, said in a meeting with the Washington Examiner in his Senate offices. “That is no longer my view.”
This is a sentiment increasingly echoed among conservatives frustrated by the ability of Democrats to block major initiatives of the Republicans by forcing 60-vote thresholds for passing legislation during a rare window in which the GOP controls both chambers of Congress and the presidency.
Traditionally, conservatives have been reticent to get rid of the filibuster, because the default assumption has been that in the long run, making it easier for the party in power to pass major legislation quickly would benefit the party that wants to rapidly expand the size and scope of government, whereas making it harder tends to benefit those that would prefer to limit government.
“There is nothing in the history of the Senate remotely like what we’re facing right now, which is the filibuster being used on everything,” Cruz said in explaining his changing view of the filibuster. “Their base, the hard radical Left, is demanding ‘Fight! Resist!’ And so, every substantive piece of legislation — virtually every one — gets filibustered.”
Cruz’s comments sound a lot like the complaints of frustrated liberal senators not too long ago, objecting to the way Republicans employed the filibuster routinely to block former President Barack Obama’s agenda.
Liberals, who are already critical of the institution of the senate for giving small states the same say as much larger states, have become more passionate in arguing for ending the practice, which they deem nondemocratic and obstructive to implementing a bold progressive agenda.
While for now, the filibuster is a useful tool to stymie President Trump, it’s difficult to envision a scenario in which Democrats regain power after the polarizing Trump era and liberals stand by and allow any combination of 41 Republicans to block everything liberals want to accomplish. If they’re in a position to hike the minimum wage, implement mandatory paid leave, pass sweeping environmental legislation, act on immigration and infrastructure, and build on Obamacare, will they really let a presidency go by in which they get none of it out of deference to a convention they dislike anyway?
The default assumption that the next time Democrats control Congress and the White House they’ll kill the filibuster is prompting a growing number of conservatives to argue in favor of striking first.
“I think if the Democrats ever regain the majority, they’ll end legislative filibuster,” Cruz predicted. “That’s where their conference is. And it doesn’t make any sense for it be a one-way ratchet — for us to have our hands tied and for them to be able to pass with a simple majority.”
During the short-lived government shutdown that occurred even though Republicans had obtained a majority to pass a funding bill, Trump, whose political success was built on his ability to appeal to the id of the Republican base, took to Twitter to reiterate his calls for Senate Republicans to embrace the “nuclear option” and move to a 51 vote threshold. Cruz retweeted approvingly.
During this decade, as the filibuster has been used more often, in another sense its potency has been eroded.
In 2013, former Senate Majority Leader Harry Reid, D-Nev., triggered the nuclear option for presidential nominees, which in 2017 Senate Majority Mitch McConnell, R-Ky., effectively extended to the Supreme Court to confirm Justice Neil Gorsuch.
In 2010, Reid used the budget reconciliation procedure to help smooth the passage of the final version of Obamacare with a simple majority, and last year McConnell tried and failed to use reconciliation to repeal the law, before succeeding in using the process to pass tax reform. This year, the passage of a budget with new reconciliation instructions would have to be the first step to pass significant legislation before this fall’s elections.
Though the use of reconciliation has made it possible to pass certain legislation that didn’t have 60 votes, it’s also an incredibly cumbersome way to legislate. In 2010, the peculiarities of reconciliation constrained Democrats in their efforts to merge House and Senate versions of healthcare legislation. Last year, reconciliation posed tremendous obstacles to Republican efforts to come up with coherent healthcare compromise to unite disparate factions. And reliance on the procedure prevented Republicans from being able to make all of their tax cuts permanent.
In effect, by using reconciliation, a party is already making a decision to pass major legislation on a narrow party-line vote. Just for the sake of keeping the filibuster alive, however, they are allowing themselves to become handcuffed in crafting policy. At some point, a majority leader is going to decide that against going through so many hoops, and accepting suboptimal policy outcomes, when an option exists to change rules and pass what the party wants with a simple majority.
Cruz acknowledges, “Although I support [getting rid of the legislative filibuster] and we’re actually having more and more serious conversations within the conference about it, and there is more support for doing it, at this point, we’re nowhere close to having 50 votes to do it.”
McConnell has been adamant about preserving the legislative filibuster, and it may be safe as long as he is in charge. But he won’t be leader forever. And whether his successor is a Republican or Democrat, whether the pressure is coming from the Right or Left, at some point, the filibuster will be gone as a tactic.
In a bitterly divided country, the nation’s political combatants are not going to accept in perpetuity the idea that they have to win a minimum of 60 seats in the Senate in addition to the presidency and the majority in the House to move on their priorities.
