Road to lasting legislative achievement goes through the filibuster
It happened like clockwork. Shortly after the new democratic majority took control in Congress, the cries of injustice over the filibuster began. Now a full-fledged effort to eliminate the Senate’s differentiating procedural tool is heating up.
Two categories of concern
Philosophically, the claim that the Senate majority should have an unfettered right to pass any and all legislation fundamentally misrepresents the purpose of the Senate and, more broadly, how the Legislative Branch is intended to work (more on this here).
Practically, eliminating the filibuster would have precisely the opposite effect these opportunistic senators claim to seek by trading long-term legislative accomplishments achieved through consensus for more politically extreme short-term gains. And these short-term gains stand to adversely impact the country’s legal and economic framework. Let’s examine why.
The whiplash problem
Without the filibuster, nothing in federal law would ever be settled. The majority party would be free to pass the most extreme components of its platform and, conversely, eliminate any prior law. Each new Congress would overturn the agenda of the last and create an entirely new set of governing laws its place.
If, for example, democrats were to ban fossil fuel production and require universal transgender equality, you can be sure that republicans would respond with commensurately polarizing legislation, such as criminalizing abortion along with repeals of the fossil fuel ban and equality measures and on and on.
Sometimes big change is necessary, but we shouldn’t pair revolution with every election. That would only tell us that we’re not getting the policies right. But practically speaking, such a back-and-forth power struggle would rock the country’s legal and economic framework with constant and extreme changes.
Industry needs certainty, and fickle federal policy creates an unpredictable business environment. This is not the sort of healthy volatility an economy needs to flourish. Rather, it’s the kind that prevents businesses from properly planning and making capital investment decisions that grow our economy and spur innovation. It also makes them less investible as markets don’t reward constant strategy swings.
The path to stable legislative achievements goes through the filibuster
I suspect some altruistic motives exist behind the flip-flopping of senators when it comes to the filibuster. They believe their policy solutions will improve the country, so they get frustrated when they can’t enact them.
But this short-term thinking is the very flaw that prevents them from accomplishing the desired change. If they pass controversial laws without the filibuster, they will be promptly undone by the next governing party. It’s that simple. Without the filibuster, the next majority would quickly overturn everything the previous leadership enacted and replace it with the full range of their platform.
In contrast, passing legislation with the filibuster intact demonstrates the policies survived bipartisan scrutiny. Achieving buy-in from across the political spectrum makes them largely immune to future change. Think about how hard it is to repeal laws once they’re made!
In this way, the most enduring laws we can create stem from the bipartisan support that only the filibuster can facilitate.
Can the Senate exist without the filibuster?
In theory, the answer is ‘yes’. The filibuster was not created by the founding fathers, but it’s formal creation in the early 1800s empowers senators to behave as its designers intended.
So it would require a particular kind of senator who values deliberation, compromise and long-term thinking to maintain the spirit of the Senate without the filibuster to chaperone. Until we have leaders able to uphold that standard, the filibuster must stay.
The deeper problem is that we – the voters – don’t reward politicians for the sort of behavior needed to properly wield the filibuster. Instead, we cheer for hyperbole and evaluate policy decisions through a zero-sum lens, which encourages senators to perpetuate polarization and pride themselves on faux heroic acts of defiance against efforts to compromise.
So until voters can exercise greater discernment at the ballot box, senators have no incentive to curb their crusades for legislative purity. And without the filibuster, these crusades would be successful, enabling every ambition that political infotainment warriors bark on cable news to become a legislative reality.
Then what?
We need more politicians to make imperfect progress through hard fought compromise legislation that’s able to endure the test of time marked by ever-changing political culture.
We need voters to support candidates who understand that the beginning of political wisdom is to observe and feel deeply the injustices of the world and still choose to govern pragmatically. We need voters to support candidates whose disposition simultaneously acknowledges and moderates the ill-advised passions of our political culture that might otherwise encourage sharp policy reactions.
Political passions change with the times but will always be a force in our democracy. We’ll know the ones worth keeping, because they’ll be put through the fire and gain consensus legislatively. For all the others, the filibuster helps us defend against the tyranny of majorities that would otherwise steamroll the rest of America.
*as measured by cloture filings, which serve as a proxy for filibusters. Filibusters can take many forms and are not always formally recorded. This is an imperfect method of counting and often underestimates the total number.