On Monday, former Senate majority leader Harry Reid (D-NV) wrote an op-ed in The New York Times calling for the full abolition of the Senate filibuster. Reid claimed that the Senate’s current rules—which require 60-vote majorities to pass legislation—have prevented the enactment of climate change and gun control legislation, turning the Senate into an “unworkable legislative graveyard.”
The facts, however, suggest otherwise. For both philosophical and practical reasons, conservatives should support retaining the Senate filibuster.
It’s Good to Make Legislating Difficult
As a firm believer in small government, I strongly support the First Amendment: “Congress shall make no law.” (What, you think the First Amendment includes some other words too?)
In all seriousness, the filibuster requires the type of deliberation the Constitution’s Framers originally intended. Remember, the Constitution guarantees citizens a republican form of government—not a direct democracy, where public opinion directly determines laws. The filibuster helps to ensure that lawmakers will not fall into the temptation to “do something” every time a policy problem arises, enacting knee-jerk legislation that could lead to unintended consequences.
Ronald Reagan famously opined about the nine most terrifying words in the English language: “I’m from the government and I’m here to help.” By making it more difficult to pass major new expansions of the welfare state when we cannot afford our current entitlement commitments, the filibuster prevents more ill-considered legislation from intruding the federal government even further into our lives.
Harry Reid Helped Create the Problem
On one level, Reid’s criticism of the Senate as an “unworkable legislative graveyard” has merit. After all, the Senate has held votes on a grand total of 18 amendments all year, falling far short of senators’ self-important claims that they serve in the “world’s greatest deliberative body.”
But why has the Senate voted on only 18 amendments all year? Because Mitch McConnell (R-KY), Reid’s replacement as majority leader, has chosen to focus nearly all the Senate’s floor time on confirming nominees—Cabinet appointments, sub-Cabinet officials, and federal judges.
And why has McConnell focused almost exclusively on confirming nominations? Because in 2013, Reid and Senate Democrats abolished the filibuster for all nominations except Supreme Court appointments. (Senate Republicans abolished the filibuster for Supreme Court appointments in 2017, to confirm Neil Gorsuch as an associate justice.)
Nominations thus require a simple, 51-vote majority for passage, as opposed to the 60 votes required for legislation. Since President Trump took office, McConnell has focused on the former to the near exclusion of the latter.
If Reid hadn’t pulled the trigger on the so-called “nuclear option” back in 2013, the Senate might have spent more time this year legislating, instead of simply approving nominees. Since he exacerbated the Senate’s status as a legislative graveyard, few should trust Reid’s prescription for fixing a self-inflicted problem.
Leaders Want to Rig the Process
As I have previously noted, the legislative process in both the House and Senate reflects the priorities of congressional members and party leaders. Whether in the House or the Senate, a more robust and open legislative process requires 1) members willing to elevate process concerns over the substance of legislation and 2) a willingness to accept outcomes with which they disagree, provided they get a “fair shot” in influencing and amending the legislation.
Most members rarely take the first approach. Republican senators have said the lack of votes on amendments “sucks.” But unless and until a group of senators offer an effective threat to grind the Senate to a halt—for instance, Republican senators voting down President Trump’s nominees—to demand an open process for legislation, the status quo will never change. As the old saying goes, if you’re not part of the solution, you’re part of the problem.
With the second, members of Congress say they want an open process, but the instant such an open process would result in legislative outcomes they disagree with, they immediately seek to ditch transparency, and to manipulate outcomes through backroom deals. Either they do not realize that such efforts neuter their own power as backbenchers—by empowering a select group of leaders to negotiate bills behind closed doors—or, more likely, they secretly support this move, because it absolves them of responsibility for legislating.
To Reid’s point, the problem with dysfunctional legislating lies less in Senate rules than it does in the body’s 100 senators. Abolishing the Senate filibuster won’t much change that dynamic; only changing senators’ mindset—or changing the senators themselves—will turn the chamber back into an effective legislative body.