Shutdown Follies: Down with the Filibuster

There is a different story to be told about the Republicans’ midterm defeat in the U.S. House of Representatives. It has nothing to do with President Trump or his leadership and everything to do, interestingly, with the Senate and its arcane, institutional rules.

Let there be no doubt: were it not for the Senate’s legislative filibuster, were it not for Republicans protecting the obstructionist rights of Democrats, the GOP would have passed most of its legislative agenda in the past two years and presented a much stronger list of accomplishments going into the midterms. We would have a border wall; we would have serious, substantive reforms to our failed immigration laws; and we would have a straight tax cut that did not increase taxes on blue state voters, a fact that surely devastated Republicans’ fortunes in the recent midterms.

If not for the filibuster, the Republican Party may have prevailed unequivocally on November 6. Instead of listening to House Speaker Nancy Pelosi (D-Calif.) outlining the Democrats’ agenda on Thursday, we could have seen Kevin McCarthy (R-Calif.) take up the gavel and talk about the next two years of Republican governance—and more than just in name only. To that end, we must consider the  legislative filibuster and why America should be rid of it once and for all. The original, philosophical justification for the senatorial filibuster is no longer compelling. Requiring 60 votes to pass a law (except under “reconciliation” rules—more on this below) divorces the perception of governance from its reality. Voters quite reasonably thought that when the Republican Party controlled the White House and both chambers of Congress it could and should deliver on its core promises. When it did not, because of obscure procedural rules, this looked like betrayal and was treated as such—in many quarters, anyway—at the ballot box.

It is true that the Republicans had waffling senators who made repealing and replacing Obamacare difficult, for instance. The deeper, structural issue, though, was always the filibuster: without sixty votes, any new law had to meet the rules of budget reconciliation. This is one of those insider topics that makes eyes glaze over. But, it’s important to understand, because, with the filibuster in place, reconciliation has become almost the only route to pass even remotely controversial bills out of the Senate.

Simply put, reconciliation is a procedure whereby, once a year only, the Senate can pass a bill with a 50-vote majority so long as it is apparently budget-oriented, and so long as the Congressional Budget Office determines that the new law will not, after 10 years, increase the deficit. This process conceals a significant problem. The CBO employs a budgeting system known as “static scoring,” essentially projecting the status quo of today into tomorrow. When it came to President Trump’s tax cut bill, for instance, the CBO made little allowance for the economic growth and increased government revenues that tax cuts can produce. It simply viewed the tax cuts as static budget “expenditures,” like buying a new car or, in government terms, building a new bridge.

As a result, the GOP Senate had to devise a way to “pay” for the cuts, to make the bill pass CBO muster, and thus follow reconciliation rules. To do so, the bill drastically reduced the threshold for federal deductions of state and local taxes—the so-called SALT deductions. SALT deductions matter much more to people living in high tax areas—states like New York, Connecticut, and California—and removing them delivered a devastating blow to Republican candidates seeking to hold on in blue parts of the electoral map. These were GOP candidates, in many instances, who prevailed in 2016, even in districts carried by Hillary Clinton at the top of the ballot.

Why would the Republican Senate accede to this, abandon the principle that lower taxes stimulate the economy, and force itself into the straitjacket of reconciliation? The Senate sets its own rules. The majority can change those rules at any time. And the filibuster is just a Senate rule, not a constitutional mandate. So, why would the GOP pass a tax cut that, for many people—and for many in key districts that Republicans had to hold—would actually result in a tax hike? Republicans, it turns out, protected the Democrats—and handed them the midterms—all because of an institutional weddedness to the filibuster.

The filibuster traditionally has been seen as a final check and balance in a system of checks and balances—a last brake, as it were, in the gears of democracy. But, this is just empty talk. The filibuster is sometimes useful as an excuse, a talking point trotted out by party leaders to deny their voters, to uphold the status quo favorable to lobbyists, special interests, or an elite donor/big business class. It’s also an institutional ornament for the Senate itself. Many senators doubtless like the idea that their body, unlike the House, requires a supermajority; and that each of their votes carries extraordinary, individual weight and must be courted with concomitant, extraordinary lobbying efforts.

Here’s the reality: Harry Reid (D-Nev.) removed the filibuster for lower federal court nominees years ago. Mitch McConnell removed it for the Supreme Court itself after the nomination of Neil Gorsuch in 2017. Federal court appointments are lifetime appointments. Their consequences last for decades and they cannot be revoked by any democratic means outside impeachment. If there were one area where an extra “brake,” or an extra check and balance, might be desirable, it would be this one. Yet, this is the one area where the filibuster does not attach, where the Senate can act by simple majority.

There is far less justification for the filibuster in the legislative arena, where its presence serves to undermine the legitimate expectations of the people. If a party controls both chambers of Congress and the presidency, if the people think that party is in government, then we should let it actually govern. Let that party pass its bills and implement its ideas. Leave it with no procedural excuses for failure. If the party’s agenda works, and the country approves of it, then wonderful. If it doesn’t, then the party can be voted out—and without the filibuster, that party’s failed laws can be repealed posthaste by the opposition.

If the government happens to be divided in any way, with both parties controlling a share of either Congress or the White House, then we will have checks and balances aplenty without requiring a supermajority in the Senate. Bottom line: the filibuster is good for individual senators’ power, good for the lordly atmospherics of the Upper Chamber, but bad for American democracy.

President Trump intuits all of this to be true. Tweeting about border security on December 21 to the Senate majority leader, Trump exclaimed, “Mitch, use the Nuclear Option and get it done! Our Country is counting on you!” If the Republican Party in Congress had been smart, it would have listened, and used this last lame duck session to eliminate the filibuster and enact as much of the president’s agenda as possible. It would have secured America’s borders by fully funding the wall and ending chain migration and the visa lottery. It would have passed tax cuts for all Americans, including blue state Americans, thereby broadening the GOP coalition. But, beholden to a procedural rule and a habit of achieving nothing, it did none of these things.

Eliminating the filibuster presents no special windfall for any particular party or interest, which may be why it remains. Both parties enjoy it when it benefits them. But eliminating it would be that rarest of rare things in a American politics: a fix in the system at large, a victory for the American people.

Photo Credit: Andrew Caballero-Reynolds/AFP/Getty Images

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About Augustus P. Howard

Augustus P. Howard, a Ph.D. candidate at the University of Cambridge, holds a B.A. from Williams College, an M.Phil. from the University of Cambridge, and a J.D. from Duke University School of Law. He has also served as a law clerk on the 11th U.S. Circuit Court of Appeals.