We hear endlessly these days from the left and the right that our political system is “broken.” The left’s principal complaint is that it is too hard to pass their desired legislation. Liberals pine for a parliamentary system, where the majority party in the legislature controls public policy. Our Founders, however, devised a novel structure of checks and balances that makes enacting legislation difficult. If that constitutional design is functioning as intended, it can hardly be said to be “broken.”
But the constitutional design is not functioning as intended. Over time, Congress has delegated legislative powers to administrative agencies that resemble the prerogative powers of the king, from which the revolutionary generation fought a war to free itself. And recently, the president himself has started asserting prerogative powers by issuing executive actions and daring Congress to stop him.
One reason Congress cannot effectively oppose this abuse of executive authority is that a minority of senators of the president’s party staunchly defends these extraconstitutional power grabs. By using the Senate’s filibuster rules, this minority can prevent Congress from passing legislation that the president would veto—for which he would be forced to take the political heat. The same minority has been using the filibuster to block the passage of individual appropriations bills; thus, Senate Democrats can forestall all spending bills until the eleventh hour, when the choice facing Congress is either to approve an omnibus bill funding the entire government or to (partially) shut the government down. Faced with this choice, Congress blinks and abdicates its constitutional power of the purse, which infuriates the voters who sent their representatives to Washington to do something about runaway spending and federal power.
Several reforms are needed to restore the proper balance of powers, and fixing the filibuster deserves priority. The filibuster has been substantially altered over the years, and although the changes have usually been the product of bipartisan compromise, a simple majority can revise the filibuster rule. The cloture rule—requiring two-thirds of the Senate to suspend debate—was created in 1917, and the threshold was reduced to three-fifths in 1975. Adopted in 1985, the Byrd Rule provides that a simple majority can enact certain spending bills through the process called reconciliation. More recently, Harry Reid, when he was majority leader, altered the Senate rules without any Republican support to provide for the confirmation of lower court judges by a simple majority.
We believe it is time to reform the filibuster once again. Specifically, it should be eliminated for all appropriations bills and for all judicial nominations, though retained for other legislation. We would also abolish the filibuster for any vote on the repeal of a federal law. These changes would not revolutionize our system of government, but would help restore Congress to the role it is supposed to have in the Founders’ design. To see why, we must recur to the first principles of our Constitution.
Protecting the rights of the minority
The filibuster occupies a strange position in the American system, but then so does the Senate. Indeed, the former reinforces the uniqueness of the latter.
The Philadelphia Convention of 1787 gathered to draft a new constitution because the states had proven themselves incompetent to handle the rigors of government under the Articles of Confederation. Nationalists like James Madison and James Wilson advocated a new approach that mostly shunted the states aside: The federal government, in Madison’s original proposal, would possess a veto over state legislation, and membership in Congress would be based on population alone. Small-state delegates resisted fiercely, and the deadlock threatened to upend the proceedings. Roger Sherman saved the day with the Connecticut Compromise: The House of Representatives would be apportioned by population, and the Senate would be made up of two members from each state, regardless of size. In this way—and many others—the Founders rejected majoritarian democracy in favor of an innovative version of republican government.
So it is that our system offers the political minority a role in the day-to-day functioning of government. The Bill of Rights guarantees the civil rights of individuals, but the Senate gives the minority an actual stake in governing. And it has done so in ways that might have surprised the Framers. The Senate not only affords the less populous states a means of opposing the more populous states, it also creates opportunities for enterprising minorities to peel away support from majoritarian proposals. This is virtually impossible in the House, which is tied to the electorate not only through proportionality but also through frequency of election—every two years as opposed to the Senate’s six. In the Senate, plucky minorities can succeed by convincing a handful of members to vote against their constituents’ preferences.
Liberals complain that the Framers never intended the filibuster, which was created by a parliamentary oversight in 1806. This objection is quaint, given that the left otherwise has no regard for original intent. Whatever its origins, however, the filibuster reinforces the constitutional principle that the minority should have a stake in government. Indeed, the main objection to the filibuster—that it thwarts majority rule—is nonsensical. Like the United Nations General Assembly, where China and Liechtenstein each get one vote, the Senate is an inherently nonmajoritarian institution. The filibuster amplifies this essential feature of the Senate. The states are distinct entities that hold a stake in government and cannot properly be coerced by a popular majority. The Senate empowers half the states, regardless of population, to stop legislation favored by the majoritarian House. The Senate filibuster empowers two-fifths of the states to do the same.
By enhancing the power of the minority, then, the filibuster exacerbates the tension that nearly destroyed the convention of 1787. The Madisonian question is: Just how much power should the minority have to thwart the desires of the majority? How do we empower Congress to pursue genuine national ends that benefit the majority, while forcing it to respect the rights of the minority? In republican government—where the leaders are mere agents of the people, empowered to secure their rights while promoting the general welfare—this is a nettlesome challenge indeed. The Connecticut Compromise did not resolve it. Instead, it set the two houses of Congress—the majoritarian House and the minority-empowering, state-based Senate—against each other to settle things through the political process.
Since Theodore Roosevelt and Woodrow Wilson, progressives have wanted to do away with much of the original constitutional design. Running as the Progressive party’s candidate for president in 1912, Roosevelt said he had heard quite enough about the “tyranny of the majority.” The problem facing the country, he maintained, was a minority blocking the “will of the majority.” Wilson, the Democratic nominee elected because Roosevelt’s new party split the Republicans, argued that our system may have been well and good in 1787, when the states were fractious and diverse, but the 19th century had forged a “national spirit.” The popular majority, representing this spirit, need not be feared. The real problem, he thought, was that our system thwarts the national spirit by dividing power.
This progressive critique contributed greatly to the most significant reform of our system since the Fourteenth Amendment: the direct election of senators, mandated by the Seventeenth Amendment of 1913. Today, the liberal drive for unadulterated majoritarianism lives on. The left has few reservations about our strongarm president setting aside ancient notions of separated powers for the sake of “getting stuff done.” And, at least until the voters revoked the Democrats’ Senate majority in 2014, progressives wanted to do away with the filibuster altogether.
We have a different view. The left, in our estimation, has the luxury of fantasizing about a purely majoritarian system because our republican Constitution has done such a marvelous job of preventing majority tyranny. Indeed, a cursory examination of the state governments in the 1780s shows how awful such a regime can be. Popular majorities in the states were eager to squash the rights of the minority and willing to advance their own interests over the national good. Madison himself identified the majoritarian problem with more democratic state governments in Federalist 10, where he noted that factions “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community,” could be a “majority or a minority of the whole.”
It is facile to assume that legislators instinctively pursue the public interest while in office. Writing in 1787, Madison noted that legislative appointments are sought for the sake of ambition and personal interest as well as the public good. “Unhappily,” he concluded, “the two first are proved by experience to be most prevalent.” Indeed, the history of our Congress is the story of a legislature that regularly sacrifices both individual liberties and the general welfare for the personal interests or ambitions of legislators, the special interests of factions, or both at the same time. It is foolhardy indeed to assume that a simple majority of the House and Senate represents the public interest. Today, campaign contributions, promises of a future career as a lobbyist, and the general Beltway culture combine to pervert the relationship between legislators and their constituents.
Furthermore, although the filibuster seems especially frustrating in this age of polarization, that may make it more valuable than ever. Combine the sweeping ideological ambitions of two opposing sides with the small electoral divide that separates them, and it is not hard to appreciate the value of the filibuster. A narrow and fleeting majority should not be able to enact its ideological agenda just because a passing wave of public discontent swept it into office. By granting additional powers to the minority, the filibuster mitigates this danger. Indeed, its utility was never so clear as with Obamacare. However flawed that bill was, imagine how much worse it would have been if the Democrats had not needed to get 60 votes to pass it through the Senate. Single payer anyone?
These arguments have no traction with liberals, who are bewitched by the Wilsonian notion, “There is no danger in power, if only it be not . . . divided, dealt out in shares to many.” They wish above all to centralize power, which is why they have no regard for the proper role of the states in our system, why they applaud Obama’s executive power grabs, and why they wish to do away with the filibuster. That leaves the conservatives and libertarians as sole defenders of our governing order, today’s “constitutional conservative movement.”
Constitutional conservatives have a special duty to ensure that the institutions of government favorable to the minority function properly. When these safeguards malfunction, as today, this facilitates the aim of the left to do away with all checks on majoritarian rule. And here the left has a political advantage. In the age of public opinion polls, the decisive political question often is: Which side received 50 percent plus one in the latest Gallup poll? Indeed, it is doubtful that the Supreme Court would have felt emboldened to strike down dozens of state referenda rejecting same-sex marriage if the national opinion polls had not shown majorities endorsing it.
Constitutional conservatives, by this reckoning, must be prepared to deliver tough love. To protect the rights of the minority in government, we must aggressively police the use of the governmental mechanisms that protect those rights in order to ensure they are not exercised in a counterproductive manner.
This is why reform of the filibuster is of such consequence right now. While the filibuster can be theoretically defended along the lines of the Connecticut Compromise, in practice it has become a shabby mechanism for stopping government. As a result, this one procedural rule is threatening the foundations of our constitutional system. By keeping Congress from accomplishing the necessary, day-to-day business of legislating, the filibuster has indirectly empowered the president to acquire legislative power by extralegal means. Obama has justified every one of his power grabs with the same taunt: Congress can’t act, so I must. The president’s conclusion is errant, but his premise is, unfortunately, spot on. Congress has responded not by using its own substantial institutional resources, but by calling meekly on the courts to rescue it.
This is a worrisome development. In Federalist 51, Madison argued, “Ambition must be made to counteract ambition.” To do that, Madison noted, the -Constitution gives each branch a will independent of the others and the means to protect itself against the encroachments of the others. As presently formulated, the filibuster has deprived the legislative branch of its constitutional means to prevent the encroachments of the executive branch, which has, in turn, sapped the legislature’s will to resist.
There is a danger, moreover, that frustration will induce members of Congress to overcorrect in the direction of majoritarianism. Liberal Democrats were calling for the elimination of the filibuster in 2009, and now we hear similar calls from conservative Republicans. If the filibuster is not reformed in a way that strikes a balance between minority rights and the national interest, it might be done away with altogether. This would be most unfortunate, as the filibuster reinforces the purpose of the Senate, a purpose that constitutional conservatives support. Hence our insistence on the filibuster’s reform.
Practical reforms to strengthen the legislature
Ending the filibuster for appropriations would restore Congress’s ability to use the power of the purse to oppose presidential overreach, enabling it to withhold funds for executive actions of which Congress disapproves. It is rare for one party to hold 60 seats—a filibuster-proof majority—in the Senate. When the minority is of the same party as the president, it can use the filibuster to prevent the majority from disciplining the president through the spending power. In recent years, Senate Democrats have discovered that if they block individual appropriations bills, the entire operation of government will inevitably be rolled into an omnibus appropriations bill, and the majority must either accept it in toto or face a partial shutdown of the government. This maneuver has largely eliminated Congress’s ability to discipline the executive via line-item spending cuts, as the recent debate over the public funding of Planned Parenthood has shown.
Senate Rule XVI defines the difference between an appropriations bill and regular legislation and establishes a procedure by which this line can be maintained; and the reconciliation of spending bills passed by the House and Senate under the Byrd Rule requires only a simple majority. Indeed, the House was induced to approve the Affordable Care Act, which had originated in the Senate, through use of the Byrd Rule to make some changes to the bill after Democrats lost their filibuster-proof majority. While the line between appropriations and other legislation may be more difficult to maintain when the difference between a 50- and a 60-vote threshold is at stake, to the extent that senators continue to value the filibuster, they have an interest in holding this line.
More broadly, Congress desperately needs to restore regular order when it comes to raising and spending money. These are core legislative functions, and the established appropriations process is a sensible routine designed to enable Congress to perform them ably. The filibuster has totally upended this practice, leaving the legislature to rely on last-minute omnibus legislation. When Congress cannot function efficiently, it is easier for the other branches to snatch power from it, upsetting the proper balance.
We are not so naïve as to believe that everyone in the Republican majority, including leadership, truly objects to the current reliance on omnibus bills. It is politically convenient for Republicans to use the 60-vote threshold to blame the Democrats for blocking appropriation bills that would require Republicans, in turn, to take some hard votes. But this is all the more reason to pressure Senate leadership to end the filibuster for appropriations bills. Whichever party holds the majority must be held politically responsible for its use of the spending power, which means that individual appropriations bills must be sent to the president.
Second, we propose ending the filibuster for judicial confirmations—and we would consider doing so for confirmation of all presidential nominees that the Senate has a constitutional duty to accept or reject. As we have mentioned, Harry Reid already led Senate Democrats to end the filibuster for lower court judges. At minimum, we would extend the Reid Rule to Supreme Court confirmations.
Although the Constitution provided for a supermajority vote in the Senate to check the president’s power to enter into treaties—which makes sense, since treaties bind the nation to foreign obligations—the Framers declined to extend this standard to the Senate’s confirmation authority. Of course, they gave the Senate power to set its own rules, which means that, provided the Constitution does not say otherwise, the upper chamber can establish whatever standard for whatever vote it likes. Still, where the Constitution is silent, prudence should guide. While Congress need not enact most legislation, it does have an obligation to assist the executive branch in staffing the judicial branch. By raising the confirmation threshold to 60 votes, the filibuster has impeded the Senate from performing this task, which in turn undermines the executive and weakens the judiciary. Whether or not the Senate is held by the same party as the president, the ability to obtain a simple majority should be sufficient to indicate the consent of the Senate to the president’s choices.
Although it has been challenging for scholars to identify precisely the history of filibusters, most agree that the filibuster of judicial nominees is of recent vintage. It has led presidents to nominate persons without a track record demonstrating their judicial philosophy, even when their own party controls the Senate, for fear of the minority’s effective veto over judges. No matter who is president, this is bad for the judicial branch, whose members should be chosen for the courage of their constitutional convictions.
Both of these reforms are meant to restore Congress to the Founders’ original vision. After all, the power to tax and spend and the duty to advise and consent are crucial functions assigned to Congress. Insofar as the filibuster is undermining them, it should be reformed. Our third proposal is more novel, but it is meant to restore a semblance of constitutional sensibility to this age of unlimited government: We suggest ending filibusters to block the repeal of a law.
The Founders wished to make laws difficult to enact without broad support and sustained interest from the public. Of this, we approve. Once a law is enacted, however, these very same structural hurdles create a ratchet preventing it from being repealed. This was not a problem when Congress respected the limits imposed upon it by the Constitution’s enumeration of powers. But since the New Deal, those strictures have been tossed aside, and, unsurprisingly, the federal code has become jammed with so many rules and regulations that average citizens can break the law without even knowing it.
If Congress, flouting the letter and spirit of enumerated powers, insists upon plenary authority to legislate, we should make it as easy as possible for it to fix its inevitable mistakes. It is hard enough to repeal a law by a simple majority vote of each house and the approval of the president. Requiring a supermajority of the Senate makes the task even harder. For the very reason our republican Constitution makes adopting legislation difficult—preventing the enactment of bad laws lacking broad and sustained support—repealing bad legislation, to which majorities of both houses object, should be made easier than it is with the filibuster rule in effect.
Where self-interest meets principle
The advantage of filibuster reform is that big structural alterations can result from a rules change that a mere majority of senators has the power to enact. The disadvantage of our proposals is that a majority of the Senate is reluctant to weaken further the filibuster, which enhances the power of individual senators. And current Republican leadership seems firmly committed to preserving the filibuster for the day when they are once again in the minority.
To Senate Republicans, we offer this admonition: You are fooling yourselves if you think you can preserve the filibuster for when you are again in the minority, and the current use of the filibuster by Democrats is hastening that day. When he ended the filibuster of lower court judges, Reid put everyone on notice that the Democrats will eliminate any aspect of the filibuster—especially with respect to Supreme Court nominations—the moment they regain control of the Senate and find it in their political interest to do so. Republicans need to do unto others before it is done unto them. As Senator Mitch McConnell said before the Democrats’ rule change: “There is not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything.” He should heed his own warning, because that is what will happen when Democrats retake the Senate.
Moreover, by allowing the filibuster to prevent them from effectively resisting the president’s overreach, Senate Republicans have so outraged and alienated the base of their party that they are courting their own demise. Their unwillingness to exercise their constitutional powers in the Senate has contributed to the rise of Donald Trump and the demise of John Boehner. Republicans should kill the filibuster before the filibuster kills them.
We wish to stress, however, that we offer this argument based on political self-interest only to address politically motivated Republican resistance to reform. For us, this is a matter of principle. These reforms are needed to enable the constitutional design to better perform as intended, regardless of who is in power. In our view, reforming the filibuster today is the best way to preserve its protection of the rights of the minority tomorrow.
Randy E. Barnett teaches at Georgetown Law, where he directs the Georgetown Center for the Constitution, and is the author of Our Republican Constitution (forthcoming). Jay Cost is a staff writer at The Weekly Standard and the author of A Republic No More: Big Government and the Rise of American Political Corruption.
