In the early 1990s I had the honor of serving on the staff of then-Indiana senator Dan Coats, who is now the director of national intelligence. During those years, I was around some of the modern legends of the Senate, and others less legendary than self-important. Once while in a Senate sundry shop, an especially smug senator walked in front of me and started talking in a rather authoritative manner to the cashier.
The cashier, a kind but no-nonsense woman, glared at the senator and said, “This young man was in front of you.” The senator, a woman, sheepishly backed away and let me make my purchase. The U.S. Senate is like that: An almost family, a place where one’s sense of history is combined with reverence for the institution and friendly familiarity with its members and staff.
This feeling of comity and mutual respect has enabled the Senate to function for generations. Personal friendships often transcend parties. When ultra-liberal Senate Majority Leader Harry Reid, one of the most bitter and insulting people in recent Senate history, injured his eye a couple of years ago, libertarian-conservative Republican Rand Paul, an eye doctor, spent time in Reid’s home mending the injury. In most countries, this kind of non-partisan human decency among politicians is unheard of.
Our Differences Aren’t Mere Partisanship
While personal friendships might still transcend partisan allegiances, beyond the personal, there is the politically substantive. Under the rules of the Senate, 60 votes are needed to bring consideration of any legislation to the full chamber for a vote. As the New York Times’ congressional reporter Jennifer Steinhauer explains, “In recent years, as partisanship has escalated, the Senate has required a 60-vote majority for almost any controversial legislation to overcome a filibuster. Gone, for the most part, are bipartisan quorums that used to pass large and complex laws with simple majorities.”
Yet this is more than about simple partisanship, about men and women on opposite “teams” who refuse to work together because one wants to “outscore” the other in electoral victories or press coverage. It is about competing views of the Constitution, the role of government, and the kind of country America is and should be.
The profound nature of this deepening philosophical chasm isn’t like squabbling children who refuse play nice. It is about a clash of worldviews and the political decisions that flow from them. Abortion, marriage, gender identity, economic redistribution, tax policy: These and many more specific issues go the very definitions of liberty, order, and even human dignity.
Because of the massive logjam that has resulted from this growing impasse, some Senate-watchers are calling for an end to the legislative filibuster. They want to allow for passing legislation with majority of 50 percent plus one. This change would follow Reid’s end to the filibuster rule on lower federal court appointments in 2013 and Mitch McConnell’s end of the Supreme Court nominee filibuster rule earlier this year.
Ending the legislative filibuster would, as former senator Byron Dorgan (D-ND) said recently, “dramatically change the character of the politics of America. The filibuster is a set of brake pads of the speed of the passion of the moment. The Senate is the place where cooler heads prevail and you need a larger group of people to find common ground.”
He is completely correct. The Founders intended the Senate to be a place less for political passion than for cool statesmanship. It has never really met this standard; funny how politics crops up among politicians. Yet the 60-vote rule has prevented undue haste and required people with competing convictions to find some form of compromise to, at the least, pay the nation’s bills.
Between a Rock and a Hard Place
Now, though, the intention of the legislative filibuster—forcing grudging members to work things out—has been lost. Instead, the 60-vote requirement has become a political club not just preventing imprudent action but almost any serious action at all.
Since Republicans won control of the House and Senate in 1994, the House has passed copious amounts of legislation that has almost immediately landed dead-on-arrival in the Senate. Without question, the 60-vote rule has prevented some boneheaded bills from becoming law, but it is stymieing the nation’s most critical business. This untenable situation cannot be allowed to continue.
It is painful for me to write this. The idea of the Senate, a chamber in which 100 men and women can debate, discuss, and dissect issues of great national moment calmly and honestly, is central to what it means to be a republic. The danger in ending the legislative filibuster is great. To again quote Steinhauer, “both parties … understand the profound and lasting effect that a party with power unchecked by the minority could have when it comes to lawmaking.”
The Senate would become essentially the House of Representatives, only with longer terms for its members. As Sen. John McCain has asked, if this happens, “Why have a bicameral system?”
If the legislative filibuster is ended, public policy could well become a case of legislative ping-pong. A majority enacts controversial legislation in one session; following the next election, a new party in power undoes it. This is a chilling prospect, and could lead not just to political disarray but dangerous civil unrest.
Yet the Filibuster Prevents Representative Government
Yet at present, the three-fifths rule means that in many circumstances, the minority—the one defeated in popular elections—rules. Historian Kevin Gutzman of Western Connecticut University argues against the Senate minority having de facto veto power through the legislative filibuster rule. “Abolishing the (legislative) filibuster would clear up confusion about responsibility for Congress’s policy decisions. The duty to govern would fall upon the majority, as it should,” he writes.
Conservative pundit Erick Erickson counters, “the filibuster is often the last tool available for conservatives to stop the worst excesses of their own party. The filibuster is how men like Mike Lee, Ted Cruz, Ben Sasse, Rand Paul, etc. can force their own party to rein in spending and liberal legislation. If you gut the legislative filibuster, you are stopping conservatives from being able to fight for limited government.”
Our country has multiple pressing needs. Ending the legislative filibuster isn’t just about ending inefficiency but allowing the work of the nation to go forward. We cannot wait forever for America’s needs to be met. At some point, things need to get done and reasonable people need to compromise. These things, not necessarily exclusive of one another, in practical terms now are not happening.
I offer no incisive political solution to resolve this dilemma. But it must be resolved. Time is not on the side of America’s future.