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The Sausage Factory

Once Again: Don’t Abolish the Filibuster

Charles Krauthammer, one of America’s most influential conservative commentators, has pointed advice for Senate Republicans: “Abolish the filibuster”. Two Republican Senators have introduced legislation that would eliminate the filibuster for Supreme Court nominees.

Conservatives might find Dr. Krauthammer insightful, but they should politely disregard his advice. Nor should they support the anti-filibuster legislation.

“What’s the downside?” Dr. Krauthammer asks. The conservative response is simple: Obamacare. Cap and trade. Stimulus. A White House and Congress under Democratic control. Democrats should worry too: Voters rarely give one party the Presidency for three consecutive terms. When contemplating filibuster reform, they should envision a third President Bush welcoming Speaker Boehner and Senate Majority Leader Mitch McConnell to the White House to discuss the legislative agenda or his pick to replace Supreme Court Justice Ruth Bader Ginsburg or Stephen Breyer. During unstable political times, if nothing else, the filibuster provides a means for ensuring bad laws are not enacted.

Dr. Krauthammer notes that with a Senate sans filibuster, Republicans could churn out bills and force the President to “[s]ign, veto or negotiate a compromise.” Hooray if President Obama signs. For the biggest legislation, that is unlikely.

The third scenario – the possibility of compromise – is also a weak justification for eliminating the filibuster. For one, the President’s relations with Congress, even with Members of his own party, are reportedly poor. Also, since Republicans took control of the House in 2011, aside from emergency legislation like the 2011 Budget Control Act, there hasn’t been major legislation (like an overhaul of the tax code or entitlement reform), so there should be little expectation of them in the future. In January 2017, President Obama will ride off into the sunset, but the Senate, which always has enough sworn Members to achieve a quorum, will remain the world’s only perpetual legislative body. Why change a venerable institution for unlikely compromises with one President? Anyways, while 60 votes are needed to end a filibuster, the number that provides enough leverage for Congress to force the President to negotiate or acquiesce is two-thirds in each Chamber – the number required to overcome a Presidential veto. As we’ve seen in past shutdown showdowns, legislation passed by a mere majority doesn’t do the trick.

In fact, eliminating the filibuster to promote compromise should be unnecessary. Most people overlook that the filibuster can and historically has encouraged compromise. As we wrote recently:

The filibuster promotes compromise by requiring the majority party to reach out and convince a small handful of Senators from the minority party to support a bill. Typically, the majority has to make some concessions to get Senators from the other party to join them. The argument can be made that this is exactly what the Senate ought to do. The Founders saw the Senate as a countervailing balance to the majoritarian House in a system of checks and balances – with the House promoting the will of the majority and the Senate guarding the rights of the political minority.

If the filibuster isn’t promoting compromise anymore, it’s because of the personalities of the Senators, not the rules of the Senate. They could be acting out of pettiness or partisanship. The parties could be so irreconcilable in their views that they simply can no longer work together. Abolishing the filibuster won’t fix these problems.

If the President refuses to sign the bills or compromise, Dr. Krauthammer advises the Republicans to take their record to the voters in 2016. This is going to happen anyway. Whether it is the Keystone Pipeline and energy production, immigration policy, healthcare or defense policy and international relations, the parties’ records in 2016 will be remarkably distinct. Nevertheless, you could argue that eliminating the filibuster would make it clear that the Democrats, particularly the President, obstinately refuse to compromise. If Republicans claim the Democrats would not negotiate, the Democrats can simply launch the recrimination that the Republicans were actually guilty of intransigence. We’ve seen this before: The public blamed Republicans, not the President, for the government shutdowns of the mid-1990s and 2013. There’s no evidence that the public will look more favorably upon the Republicans on this count in the future. Just look at the argument over the Department of Homeland Security appropriations bill: Even within Congress: Members were divided on how to avoid a shutdown precisely because some feared the public would blame the Republicans.

The fact the Republicans have been faulted for not compromising in the past points to another reality they must acknowledge: Voters do not trust either party enough to accept their arguments without skepticism. The Republicans have their largest congressional majority in decades; and, yes, they just took the Senate in 2014. But we have seen dramatic swings in four of the last five elections – 2006, 2008, 2010 and 2014. Right now, voters are frustrated and anxious to send messages to whomever they perceive to be in charge. It will take time, some sustained legislative success, and a diminishment of partisan incivility before voters trust their political leaders again.

Prevalent skepticism of politicians also suggests the Republicans could not trumpet the fact that they eliminated the filibuster for efficiency’s sake. To some extent it would confirm voters’ cynicism. Plenty liberal media outlets would gladly accuse the GOP of hypocrisy since the party was incensed that the Democrats used the nuclear option in 2013. That’s if the voters care about it at all. It is very difficult to get the voters worked up over procedural issues. For instance, how many Americans understand that the most powerful committee in Congress is the House Rules Committee? Eliminating the filibuster did not help the Democrats preserve their majority. It won’t be an electoral winner for Republicans either.

Even if the Republicans were confident that they had the always-illusory “permanent majority,” the filibuster should stay right where it is. Over the years, despite abuses, Members have kept it in place to protect the rights of the political minority, which is the essence of the Senate. If that is lost, what’s the worst that could happen?

We don’t want to find out.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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