Why keep the filibuster?


By Robert Romano



On National Review, there was an interesting exchange of pieces on whether Republicans should consider abolishing the filibuster.

The first, “Senate Norms for Today (and the Foreseeable Future)” by Peter Spiliakos, argues for eliminating the Senate filibuster because “the most important policy get changed when one party is at the height of its hubris and those changes are then locked in throughout the normal ebb and flow of politics.”

History proves Spiliakos’ description of events to be correct but leaves out one important detail, which is, Senate supermajorities are the exclusive province of Democrats.

In fact, since the advent of Rule XXII in 1917, Republicans have never had a filibuster-proof majority in the Senate. And, if history holds, they never will.

The New Deal, Great Society, and the first two years of the Obama administration that brought the health care law, the so-called “stimulus,” and Dodd-Frank were all enacted after Democrats had won the White House, House, and a filibuster-proof majority in the Senate.

So, Social Security, Medicare, Medicaid, Obamacare. You name it, likely it was instituted when Democrats had a filibuster-proof majority in the Senate.

The Social Security Act was in enacted in 1935, right after Democrats had won a whopping 69 Senate seats — back then that was out of 96 possible seats, making a 72 percent majority, more than enough to reach a two-thirds vote then needed for cloture. The Democrats’ filibuster-proof majority would last through 1942.

The National Labor Relations Act, establishing the National Labor Relations Board, was enacted in 1935.

The Medicare Act of 1965 passed after the 1964 election awarded Democrats with 68 Senate seats, plus the White House and House. This filibuster-proof majority would last only two years, however.

But, by 1975, Democrats again reclaimed such a majority, simply by changing the rules, from a two-thirds majority to a three-fifths majority to invoke cloture. And they held it in 1976, paving the way for Jimmy Carter to govern with a filibuster-proof majority. That yielded the Humphrey-Hawkins Full Employment Act of 1978, which, among other things, gave us the Federal Reserve’s dual mandate.

That would be the last filibuster-proof majority until 2008, when Democrats regained it following the political massacre of Republicans after the financial crisis.

That is, with a lot of help from the late Sen. Arlen Specter, who famously switched parties to get the Democrats to 60 votes through 2010.

Specter’s move gave the U.S. the “stimulus,” Obamacare, and Dodd-Frank financial overhaul bill.

In the meantime, since Republicans cannot get to 60 votes in the Senate, they have proven unable to roll back any of these programs, or with some exceptions to implement very many of their own.

But that’s okay, writes Bill Wichterman at National Review in the second piece in response to Spiliakos, because “For the sake of preserving maximum freedom, [the Framers] wanted to make it difficult to pass legislation.” And, “Conservatives have benefited from the filibuster in the past,” pointing to Republican moves to block union card check and the so-called Paycheck Fairness Act.

In other words, Republicans can still wield the filibuster against Democrats, thus making it possible to stop any more power grabs in the future.

On the other hand, now that all these big government programs are in place, the filibuster makes it effectively impossible to get rid of any those institutions, because, as Wichterman correctly notes, any bill to get through “requires at least a minimum level of bipartisanship in legislating.”

And since the only bipartisan consensus is for keeping big government programs in place, then, the battle for eliminating programs is lost before it even begins because Republican can never get to 60 votes in the Senate. Why is that a good thing?

Wichterman explains, “The Founders believed that our passions are not necessarily reliable guides. They believed in the primacy of reason and deliberation. To the extent that we jettison greater deliberation, like that which the filibuster forces upon the Senate, we are walking away from the Founders and embracing a fundamentally unconservative view of the world.”

Here, Wichertman’s is an argument for stability in the bureaucracy, the budget at more or less current spending levels, the current body of laws and regulations, and the current structure of the government, not for implementing conservative principles into law.

In other words, the status quo.

But since when is conservatism reduced to merely making it difficult to pass legislation? Because it appears the only outcome so far of the filibuster is to make it difficult for conservatives to pass legislation. So, why keep it?

Under this situation, it’s easier for the executive branch to violate the actual Constitution and just ignore the law than it is for Congress to eliminate or even limit a single statutory program, agency, or regulation. In this instance, the filibuster actually incentivizes the imperial presidency — and the inherent breakdown of limited government, the separation of powers, and the rule of law — something a great deal more dangerous.

Making matters worse for the GOP, Republican voters could be on the verge of just throwing in the towel if their only reason for participating is to only incrementally move down the road to serfdom. People have a right to reject the mechanisms that lead to their own enslavement, and if having a filibuster means that big government wins in the end, then it is not the lesser of two evils, it is simply evil.

Unless, that is, anyone can actually outline how Republicans get to 60 votes in the Senate to get anything on their agenda done, such as repealing Obamacare. One assumes, since Republicans have never had a filibuster-proof majority, they likely never will. Is a nearly a century of failure a big enough dataset?

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Robert Romano is the senior editor of Americans for Limited Government.

By Robert Romano

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