A Word for the Filibuster

Published April 3, 2019

National Review Online

On its face, the move Senate Republicans are making Wednesday to reduce the number of hours of floor debate required to vote on presidential nominations is modest and limited. It’s not as dramatic as the several moves made in the past few years to restrain the powers of minorities to filibuster specifically judicial nominees. But it is a further step along that path, and it’s a path that leads beyond just nominations. As Paul Kane puts it in the Washington Post:

If one side is willing to ‘go nuclear’ just to more quickly confirm the assistant secretary of Commerce — that’s the nomination that will start the process Wednesday — some Senate majority leader in the not too distant future seems certain to push to eliminate the 60-vote threshold so they can pass a major legislative proposal.

President Trump has already called for such an elimination of the legislative filibuster, and a fair number of senators have said the same.

I think they’re wrong. But more than that, I think these calls point to a basic but generally unarticulated dispute about the nature of the Congress, what’s wrong with it, and what might be done about it.

Put simply, our system of government has at its center a Congress that requires a fair amount of bipartisan accommodation in order to function but that is subject at this point to a set of circumstances and incentives that mean we don’t have much bipartisan accommodation. This means the Congress isn’t functioning. That much is pretty clear. For reformers of the institution, the question is whether you address that problem by pursuing reforms that reduce the need for bipartisan accommodation or by pursuing reforms that increase the likelihood of bipartisan accommodation. Do we move toward a parliamentary model in which majorities rule almost absolutely while they hold power or do we recover a congressional model that demands and compels the creation of broader coalitions?

It seems to me that the latter is by far the better option, not only because pure majority rule is unfair to legislative minorities but also because we actually don’t have a durable majority in our politics right now. We basically have two weak minority parties, neither of which has the mandate or the capacity to govern alone. Every election is a contest to see which party’s weaknesses will make it a little more odious to the public than the other, and neither party lays claim to that title for long. Control of both houses of Congress has been swinging back and forth in this century. But the choice reformers are implicitly making is to double down on strict partisanship in Congress. That is a recipe for making our problems worse.

Improving things would require us to recognize that the purpose of Congress is to force some accommodations in our diverse and divided republic. As Philip Wallach has put it:

The very features that would-be reformers find most exasperating — its messiness, balkiness, and cacophony — are those that render our representative legislature capable, in ways the other branches are not, of maintaining the bonds that hold together our sprawling republic. Critics of Congress are right to think that the legislature is a poor champion of efficient government relative to the executive branch, but they fail to realize the deeper goods and goals that representative government serves, namely promoting provisional coalition-building, generating trust, and creating real political accountability.

Making that possible would require enabling Congress to do more smaller-scale, concrete legislating rather than having it become an arena for symbolic culture-war performance art occasionally interrupted by up-or-down votes on nominees (in the Senate) and massive, sprawling, omnibus bills no one has read. This requires above all a transformation of the budget process—for instance by combining authorization and appropriation and breaking up the big annual spending bills into smaller, more focused pieces. Together with a reconceived committee system suited to this new way of legislating, such reforms would give members of both houses more to do, would create more opportunities for concrete compromises over legislative particulars (rather than abstract battles over general messaging points), and would help the Congress regain its proper place at the center of our system of government.

These would be far preferable to steps toward pure majoritarianism in Congress. The filibuster could certainly be made more meaningful and harder to deploy—for instance, by requiring that senators actually fill floor time, as the filibuster was traditionally understood to require. This could apply to both nominations and regular legislation; and if the Senate legislated more it would be less inclined to view itself as a human-resources department for the other two branches which could enable more traditional bargaining over nominations too. By making it too easy to filibuster, the Senate has enabled the procedure to become a pure partisan weapon deployed on a regular basis, rather than a spur to cross-partisan coalition-building on exceptionally controversial issues. Reforming its use with that purpose in mind would be helpful.

But it should not be done away with in the name of pure majority rule. In our time even more than usual, Congress should be designed to require and compel accommodation. That is the fundamental work of the legislature in our system. I would sooner create a filibuster in the House than eliminate the one in the Senate.

— Yuval Levin is the editor of National Affairsand a fellow at the Ethics and Public Policy Center.

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