When the Republicans “went nuclear” on Thursday and changed the rules of the U.S. Senate to eliminate the filibuster for Supreme Court nominations, Congress started down a path to destroy what makes that body special. The Republicans’ win-at-all-costs strategy will almost certainly lead next to the end of the filibuster for legislation, not just nominations, which would fundamentally change the culture of the Senate and be a tragic loss for our democracy.
In the Senate, unlike in the House, every vote matters, precisely because of the possibility of a filibuster, which, under the Senate rules, allows a minority of senators to block a vote. That is why moderates on both sides of the aisle are often able to exert a strong, and largely positive, influence on that body. It is why we see (albeit less often lately) coalitions of moderate Republicans and Democrats working together far more often in the Senate than in the House. It is why the Senate is known as our deliberative body.
Of course, some of this is fantasy. Some people say the filibuster allows for unproductive obstruction and has created a culture of gridlock. Others would surely point out that the Senate is often as political as any other part of government.
But when it comes to legislation — and that is where the filibuster is indeed most important — the filibuster is an essential way to ensure that we maintain some balance in government. We should all hope that the Senate Republicans, especially those who have held office for a long time, hold the line.
The Republicans don’t bear all the blame. In 2013, it was the Democrats who opened the door to the so-called nuclear option by eliminating the filibuster for non-Supreme-Court nominees, and they might well have gone all the way eventually. Around that time, moreover, when the GOP was in the minority, now-Senate Majority Leader Mitch McConnell wrote in an op-ed that the filibuster was essential to maintain the “defining characteristic of the Senate. That is why all senators have traditionally defended the Senate as an institution, because they knew that the Senate was the last legislative check for political minorities and small states against the kind of raw exercise of power large states and majority parties have always been tempted to wield.”
So much for that. It's only a matter of time until Republicans get frustrated in the context of policymaking, as they were in the case of the Supreme Court nomination. And, despite McConnell's promises that his nuclear trigger finger was only for the Court, it’s probably also only a matter of time until Republicans decide that the ends (enacting desired legislation) justify the means (getting rid of the filibuster for legislation).
But Republicans now control all three branches of government. If, even with this overwhelming power, they cannot put together legislation that can get through, they should be thinking through that legislation more carefully.
This is not a partisan argument. The Affordable Care Act passed without a single Republican vote, and that single fact probably politicized the statute more than any other. But it wasn’t for want of trying. Indeed, because of the filibuster, the healthcare law was crafted, even if not ultimately passed, with moderate Republicans. That is why the statute contains so many aspects that are actually appealing to Republicans and is not nearly as liberal as Democrats and allied independents like Sen. Bernie Sanders would have wanted. In the end, that bipartisan process is a likely reason for the Affordable Care Act’s continuing existence even in the era of Trump.
Republicans with a long memory will also recall the many years in which the Democrats were in power, a cycle that is sure to repeat. Rendering entirely ineffective the voice of the minority party will come back to bite them, maybe sooner rather than later.
A Supreme Court made up of extremists — on either side — is not good for the country. Neither is a Congress in which moderates and minority voices have little power. Both will lead to a further erosion of faith in the legitimacy of our government.
Although some believe the filibuster is unconstitutional, Article I, Section V of the Constitution specifically gives Congress control over its procedures. And there are lots of other ways that Congress has chosen to slow itself down in the interest of deliberation and, sometimes, consensus, including the committee system. Committees create an extra step in the legislative process that not only provides an opportunity for information-gathering but also adds a veto point to the arduous process of passing a bill.
There is, inevitably, a trade-off between the desire for deliberation and the desire for action, and, ironically, it’s conservatives and libertarians who most often come down in favor of legislative obstacles — in part because they believe that more legislation is rarely a good thing for the country.
Yes, Congress is more gridlocked and partisan than at any time in our history. Yes, the era of the “Schoolhouse Rock” legislative process is dead. But the answer to those problems should not be to give up on the concept of a deliberative, bipartisan government, or to turn the Senate into the House. Instead, the answer should be to change our political culture and find ways for government to function again.
Abbe R. Gluck is a professor of law at Yale Law School and an expert on Congress, federal legislation and health law.