Opinion: Remind me, why do we need the filibuster?
I’ve been writing about Congress since the late 1980s, watching as filibusters in the Senate evolved from rare and usually doomed efforts by fringe factions into what they are today: a routine practice by whichever party is in the minority. And I’ve been one of the few members of this newspaper’s editorial board who argued in defense of the filibuster, which was itself a lonely and doomed effort, given the board’s oft-stated position that the filibuster was unacceptably undemocratic.
I’ve come around on that. Republicans and Democrats have put the legislative filibuster to a stress test over the past decade, exposing faults I’d been dismissive of before. (The filibuster has been nuked for judicial and executive-branch nominees.) The institutionalist in me wants to hold onto the filibuster as a way to preserve more of what makes the Senate different from the House. But if the difference is dysfunction, it’s not worth preserving.
The main argument for the filibuster is that it compels compromise. That’s the heart of the defenses put forward by Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the two people stopping their party from casting the filibuster into the dustbin of history. As Sinema put it in a Washington Post op-ed, “The best way to achieve durable, lasting results? Bipartisan cooperation.”
She’s right about that! But implicit in that remark is the notion that bipartisan cooperation is there to be had. It is — sometimes. Just not on big, divisive issues, which is where this country really needs it.
The Senate is now grinding its way through a bipartisan infrastructure proposal that Sinema helped negotiate. Last week it easily obtained the 60 votes needed to cut off a filibuster on the motion to start debate. (Reminder: Every piece of legislation has to overcome a filibuster just to get on the floor, and another one to shut off debate and hold a vote.) You might point to this bill as Exhibit A in the filibuster’s defense, but you’d be wrong about that.
Infrastructure bills are hugely popular with the public, even in red states. Numerous Senate Republicans wanted to be able to take credit for boosting spending on roads, bridges and the like, knowing that if they didn’t get on board, Democrats would do a big infrastructure boost through a budget reconciliation bill, which can’t be filibustered. That’s why bipartisan cooperation was available on this bill — it’s not that controversial a topic.
Contrast that with, say, healthcare policy. Lawmakers have known for years that the U.S. system is on an unsustainable path, costing too much, excluding too many people and delivering less value than in other major countries. But since the passage of the 2010 Affordable Care Act, lawmakers haven’t been able to do anything substantive on the topic.
Instead, the heavy lifting on healthcare has been done by the White House, for better or for worse. Witness, for example, the Trump administration’s efforts to lower the price of prescription drugs and to make less expensive but less protective insurance policies available to more Americans.
In addition to shifting the balance of power away from the legislative branch, the filibuster has led to some warped lawmaking. To avoid the filibuster, majorities have sought to use reconciliation bills to enact policies that the minority is determined to block. But under federal law, each provision of a reconciliation bill must have a significant effect on federal spending or revenues. That means the reconciliation process may change some elements of a program or policy but leave others weirdly intact.
That’s what happened in 2017, when Republicans repealed the tax penalty in the ACA for adults who fail to obtain insurance coverage while sparing the ACA’s mandate to obtain coverage, which they couldn’t address through reconciliation. The disparity triggered a lawsuit by Republican state officials seeking to throw out the entire ACA; happily, the Supreme Court threw the lawsuit out instead.
Conservatives argue that Democrats want to kill the filibuster because they’re eager to use Vice President Kamala Harris’ tie-breaking vote in the Senate to cram their agenda down America’s throat. And that sort of opportunism is definitely out there.
But it’s short-sighted. Eliminating the filibuster will help Republicans advance their agenda the moment they take back the majority, which may be soon enough. And so whatever policy gains the Democrats make without GOP support now could easily be reversed and then some when Republicans run the Senate.
I used to think that this was a problem — that the House was Congress’ pinwheel but the Senate was its cornerstone. Now I see it as a solution to the legislative branch’s inability to act on anything of consequence outside of reconciliation bills, whether it be immigration policy, climate change, criminal justice reform or a multitude of other long-neglected issues.
When you think about it, the filibuster isn’t protecting bipartisanship in the Senate. It’s protecting lawmakers from having to take a stand on divisive issues. If the Senate minority can no longer stop the majority from even bringing up bills, they’ll be in the position that the minority in the House is in, having to choose between trying to score political points and engaging with the majority on the legislation it’s moving.
And yes, some policies may end up swinging like a pendulum. But at least Congress will get off the sidelines.
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