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Woe Democracy! The filibuster is on its way out, but is that bad? (by Jelte Olthof)

Date:18 April 2017
Senate Nuclear Option
Senate Nuclear Option

On Monday, 10th Circuit judge Neil Gorsuch took his seat on the Supreme Court, ending a highly polarized confirmation hearing. Picked by President Trump to fill the seat of the late originalist hero Antonin Scalia, the staunchly conservative Gorsuch will not radically upset the balance of the court, but his confirmation will forever change the face of Supreme Court nominations.

Gorsuch’s confirmation will go down in history for ending a cherished Senate procedure with it: the filibuster. To prevail over Democratic opposition, Senate Majority Leader Mitch McConnell and a Republican majority went “nuclear” and revoked the use of the filibuster to stall Supreme Court nominations in the future. The move is yet another sign of increasing polarization in Washington, this time affecting the institution that has long prided itself on keeping aloof from partisan bickering.

Senators left and right fear that McConnell’s move marks the end of the Senate as we know it. Across the aisle, politicians lament the passing of an era and worry that McConnell’s decision will—insults of insults!—make the Senate more like the House of Representatives. Senators traditionally pride themselves on serving in the greatest deliberative body in the world and tout their lengthy debates and bipartisan decisions—both made possible by the filibuster—as proof. Over a week ago, Senator Patrick Leahy of Vermont, the senior member of the Senate, scorned McConnell for “forever damaging the United States Senate,” before announcing his decision to support the filibuster, saying that “the Senate I would be defending no longer exists.” Academics have likewise sounded the alarm. Richard Arenberg of Brown University, in a podcast interview with the National Constitution Center, said that the move put the Senate in a “death spiral.”

Democrats and Republicans were quick to blame each other for the filibuster’s demise. Republicans quoted then Democratic Majority Leader Harry Reid’s 2013 decision to revoke the use of the filibuster for presidential nominations (excluding Supreme Court Justices) in an attempt to break Republican stalling tactics. Democrats in turn cited the Republican majority’s refusal to host hearings for former President Obama’s third Supreme Court nominee, Merrick Garland. The decision to filibuster Gorsuch’s nomination was, in part, motivated to take revenge for this. Each side, in short, deserves part of the blame.

A question worth asking at this point is whether this woe over the demise of American democracy is warranted. Is the filibuster really the awesome democratic institution that some Senators make it out to be? Is it even constitutional? And what does yesterday’s decision mean for the future of American government?

Let’s begin with a little history. To many, the term filibuster conjures up an image, popularized by the 1939 film Mr. Smith goes to Washington, of a heroic senator speaking for hours to stop a corrupt majority. In reality, the “talking filibuster” as it is known was mostly used by less than heroic segregationists to block civil rights legislation in the 1950s and 1960s (the record length filibuster is by South Carolina Senator Storm Thurmond who kept the floor for over 24 hours against the Civil Rights Act of 1957—taking only one bathroom break). Today this dubiously romantic picture no longer holds true. Notwithstanding futile attempts by the likes of Paul Rand and Ted Cruz to revive old traditions, Senators nowadays can simply signal their intent to filibuster to block legislation.

Unlimited debate was part of Senate practice from its inception in 1789, but it was contested from the beginning. Opposition to the filibuster led the so-called “cloture” motion of 1917, which allowed two-thirds of Senators to end debate. This was reduced to 60 votes in 1975, which is still the number required to “break” a filibuster.

The cloture rule ensures that the minority in the Senate retains a lot of influence and can force the majority to accept watered down version of their plans, as happened with Obamacare in 2010. While this may be what the framers envisaged, it is certainly not democratic—and let’s not forget that democracy was sort of a four letter word in 1787. The filibuster is basically a minority obstructionist measure, as Cornell Law School professor Josh Chafetz points out, which allows the defeated party to stall legislation and cajole the majority into granting its wishes.

Though many of the framers would applaud the filibuster, it is not mentioned in the U.S. Constitution. Article 1 section 5 of the Constitution simply states that “each House may determine the rules of its proceedings,” including how many votes are required to pass legislation. This explains why McConnell can revoke the filibuster by a simple majority decision, since amending the Constitution is a herculean task. Though Josh Chafetz has argued that it violates the Constitution’s supposed commitment to majority rule, this certainly is wishful thinking.

Few framers were enamored with idea, which explains why they cooked up the majority-vote violating Electoral College which, most recently, granted Donald Trump the Presidency without a popular mandate. The U.S. Constitution was and is democratic only in a limited sense of the word and the filibuster perfectly reflects that.

All this means that those of us committed to democratic decision-making should not lose any sleep over the passing of the filibuster on Supreme Court nominations. Of course it will mean that future Court hearings will become even more politicized, but this has been long in the making. Consensus figures like Merrick Garland have no future on the Court, but then again, Garland was never granted a hearing when the filibuster was still in place. 

The big question left is whether the remaining filibuster on legislation will follow down the same path. I think this is inevitable: the filibuster is on its way out. Despite musings that McConnell’s decision might actually bring about a new bipartisan spirit in the Senate, the filibuster will become the next victim of America’s increasingly polarized political culture. The real question is whether we should bemoan this the same way we do gerrymandering and the lack of Congressional oversight. I’m not sure we should.