As the latest and longest government shutdown enters its denouement, Congress will be left to tally the costs and repair the damage. One thing to be thankful for: The filibuster, the procedural oddity that has constrained Senate majorities for decades, remains intact — for now.
As Republican frustration mounted last week, the procedure appeared to be in genuine jeopardy. A Democratic minority in the Senate had taken advantage of the rule — which generally requires 60 votes to end debate and advance legislation — to block spending bills and keep the government shut. Yet Republicans, who hold both legislative chambers and the White House, were taking the blame.
After the party got drubbed in last week’s elections, the president unsubtly aired his preferred resolution: “REPUBLICANS, TERMINATE THE FILIBUSTER!”
Many in the party’s rank and file are tempted by the idea. They reason that doing away with the supermajority requirement would lift constraints on the president and allow them to advance the rest of their agenda by a simple majority. Many also perceive a first-mover advantage, on the theory that Democrats will surely do away with the filibuster next time they’re in control.
Yet, as Republican leadership appears to recognize, such a change is likely to do more harm than good.
Wielded appropriately, the filibuster should increase statutory stability, discourage radical agendas and prevent narrow majorities from enacting sweeping social changes. By encouraging the minority’s participation in the legislative process, it should also induce compromise and bipartisanship. While its real-world effects are hard to isolate, there are indications that it has led to more moderate outcomes and less policy volatility over time.
Eliminating it, as the president wants, would run the risk of destabilizing governance, emboldening extremists and further centralizing power in leadership offices. Republicans might achieve some of their priorities — new tax cuts, immigration restrictions, voter-ID rules — but they should expect Democrats, once empowered, to enlarge the welfare state, expand the Supreme Court, create new states and so on.
In polarized times, the risk is that parties will take turns imposing diametrically opposed legislative agendas every few years. In addition to fostering resentment and worsening partisan divides, that’s a formula for perpetual uncertainty, confusion and economic stasis. Gridlock may be lamentable, but chaos is surely worse.
That said, it’s undeniable that the filibuster has been abused in recent years, effectively requiring a supermajority even for routine Senate business. Such obstruction, as Alexander Hamilton warned, threatens to “destroy the energy of the government.” In response, Congress has carved out numerous exemptions to the rule, including for budget reconciliation and nominations. Ending the legislative filibuster, some argue, is the next logical step.
A better approach is to reform the procedure to prevent its abuse. There are many options for doing so: Require that senators hold the floor and keep up continuous debate. Gradually reduce the cloture threshold across successive votes. Instead of 60 votes to end debate, require 41 to extend it. Limit the procedure only to coalitions that in aggregate represent a majority of the US population. Simply slash the threshold to 55 votes.
All such ideas have merits and drawbacks. The goal should be to impose constraints on pure majority rule while limiting opportunities for habitual obstruction. As James Madison put it at the Constitutional Convention in 1787: The “use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.” Modern politics would benefit from each of those virtues.
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