Safeguarding the Filibuster

Once again, the Senate filibuster is under attack. With each passing salvo, the 60-vote threshold stands on shakier legs. Unless we enshrine the filibuster in our Constitution, its days are numbered, as is the political stability we enjoy.

Earlier this year, President Biden declared his support for “changing the Senate rules... to prevent a minority of senators from blocking actions on voting rights.” Now, with Roe v. Wade fresh off the chopping block, congressional Democrats have renewed their attacks on American institutional norms. Protesting in front of the Supreme Court, Representative Andy Levin declared: “The filibuster is a vestige of Jim Crow,” one which “[o]ur founding fathers didn’t want” and “a majority of senators should get rid of.” But attacks on the filibuster are not unique to Democrats. In 2018, with his agenda similarly languishing in the upper chamber, President Trump urged then Majority Leader Mitch McConnell to “use the Nuclear Option and get it done!”

It’s telling that many, including the former President, call eliminating the filibuster “the nuclear option,” so named because it involves changing Senate rules by simple majority vote. The implication is clear: without the filibuster, the Senate -- and our nation -- would be a nuclear wasteland devoid of meaningful deliberation.

The upper chamber’s trend toward nuclear annihilation is unmistakable. In 2013, Senate Majority Leader Harry Reid nuked the filibuster for most presidential appointees, excluding only Supreme Court justices. Just five years later, Majority Leader McConnell finished the job, ditching the 60-vote threshold to confirm Justice Neil Gorsuch with only three Democratic votes. Now that two consecutive Presidents, each accompanied by a chorus of congressional partisans, have advocated the abandonment of the filibuster, the time has come to put an end to these games.

The filibuster has always been -- by design -- a thorn in the side of Washington’s majority party. When passions run high in the House, the Senate pumps the brakes to encourage deliberation and consensus-building, effectively requiring 60% of the states to agree before enacting great social change. Thus, one party is typically incapable of political revolution on its own, bringing both stability and comity to our system of governance. 

As Justice Oliver Wendell Holmes so famously claimed, our Constitution “is made for people of fundamentally differing views.” What one state’s residents find “natural and familiar,” another state’s citizens might think “novel or even shocking.” Such is the essence of a pluralistic democracy, which the filibuster embraces by making one-size-fits-all federal solutions a heavy lift. Indeed, the 60-vote threshold is so onerous that it practically requires the Senate majority to reach across the aisle for votes.

Legislation that reconciles stark partisan differences stands the test of time, having trudged through a deliberative process in which the minority is offered a say. Look no further than the Civil Rights Act of 1964, which achieved supermajority consensus and consequent legitimacy before becoming law by surmounting a filibuster of southern senators. Having been defeated by such a strong, deliberative consensus, the South quickly came to accept the Civil Rights Act and dismantle Jim Crow

In a larger sense, the Union itself owes the filibuster thanks for continuing stability. Were Senator Mitch McConnell to have buckled under pressure from President Trump and nuked the legislative filibuster, Republicans would no doubt have scored noteworthy victories. From 2017 to 2018, the GOP could have defunded Planned Parenthood, hardened security on the southern border, regulated abortion procedures, gutted green subsidies, or enacted a nationwide right-to-work law. But these victories couldn’t last. After Biden's inauguration, and the Georgia 2021 runoffs, Democrats would repeal and reverse each conservative policy, dramatically expanding federal power.

Without the filibuster to restrain them, Democrats could pack the Supreme Court. They could strip the Supreme Court of its power to review certain cases. They could even add new states to the Union for the first time since 1959, as Democrats attempted to do with D.C. To effect such significant change by party-line vote would cost the nation dearly, fomenting partisan rage and inviting political retribution. As soon as the GOP regained control of Washington, a likely prospect in light of Biden’s current approval ratings, it would repeal and reverse the policies scarfed down its throat; in the words of Senate Minority Leader McConnell, “[t]he pendulum would swing both ways, and it would swing hard.” The Union would pay dearly for such turbulence.

Two Presidents and many Congresses having assailed this fundamental rule of American governance, the time has come to safeguard the Senate’s 60-vote threshold by constitutional amendment. So doing will forever secure minority rights in the chamber our Founding Father Alexander Hamilton charged with cooling “the impulse of sudden and violent passions” and curbing “intemperate and pernicious resolutions.”

Charles Brandt is a second-year law student at the George Washington University Law School.

Image: Library of Congress

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