President Trump has been calling on the Senate to dump the filibuster, a procedural rule that essentially requires 60 votes to get anything done. He’s tweeted that the rule is outdated and it makes the Republicans “look like fools.”
Is this a self-serving request? Sure. But he’s got a point.
I don’t want to brag, but I’ve been against the filibuster for as long as I’ve known about it. I guess that sounds like pretty poor bragging, but if you look around, a lot of people seesaw based on their political persuasion.
For instance, The New York Times editorial board. They didn’t like the filibuster when it slowed down President Clinton’s agenda. Then supported it when it slowed down President Bush’s plans. Then opposed it when it impeded President Obama. And now say it’s a good thing to keep President Trump in check.
But one’s stance on the filibuster shouldn’t be determined by partisan notions. It should be based on what leads to a properly functioning Senate, as set forth in the Constitution.
If the filibuster did go away, perhaps we’d find the Senate would go back to an older, and better, way. One where it’s your job to try and persuade your colleagues, not shut them down.
And the Constitution is fairly clear: in the Senate, the majority prevails. When a higher percentage is required—for example, two-thirds vote for a treaty—the Constitution spells it out.
And it’s not as if the filibuster is some grand tradition. It didn’t exist in the original Senate, and when made possible due to a rule change, wasn’t invoked until 1837. (There also used to be a filibuster in the House, but they got rid of it before the Civil War, and no one’s missed it.)
Over the years, the filibuster rules have changed so much you wouldn’t recognize it today. As you’ll recall from movies like "Mr. Smith Goes To Washington," the old filibuster required senators to stand up and talk until they were blue in the face. (In real life, the filibuster wasn’t as stirring as Jimmy Stewart made it look—it was often used for ugly reasons.)
Today, however, following rules changes in the 1970s, all that’s required to prevent a vote on a bill or nominee is the mere threat of a filibuster. And what was once an unusual practice has since skyrocketed.
Don’t get me wrong—it can be a good thing when the Senate is stymied. Plenty of bills are better left unpassed. But it would be better still if the Senate did its duty, and passed—or prevented—laws through straight up and down voting as envisioned by the Constitution.
Particularly troublesome is the filibuster for judicial nominees (which has been weakened since Harry Reid triggered the “nuclear option” during the Obama years). It’s bad enough when the Senate doesn’t do its own legislative business, as described under Article I of the Constitution. But when they refuse to vote on nominees sent by the president, they’re using a procedural rule they created to thwart Article II powers assigned to the executive branch.
Majority Leader Mitch McConnell doesn’t want to lose the filibuster. He remembers all too well what it’s like to be in the minority.
But if it did go away, perhaps he’d find the Senate would go back to an older, and better, way. One where it’s your job to try and persuade your colleagues, not shut them down. And if that fails, maybe do some horse-trading. And if all else fails, try to persuade the public to change the Senate itself.
What you shouldn’t be doing is a procedural maneuver designed to bypass the substance of a document you swore to uphold in your oath of office.