Should a minority party be able to shutter the government and by their own admission, cause widespread suffering because of a tool some have claimed is a relic of slavery, especially when the nature of that tool has changed dramatically?
Generally speaking, I am a fan of the filibuster. While the mainstream media and President Donald Trump’s detractors regularly accuse him of creating chaos and uncertainty, there is nothing more likely to do so than allowing the party that controls the Presidency and Congress with only small majorities to pass major pieces of legislation on strictly party line votes, creating, repealing, and replacing effectively at will. If you think things are crazy now, it’s hard to imagine what the country might look like if everything passed by a Democrat could be wiped away by a Republican less than four years later, or vice versa. In truth, the filibuster is frustrating to many, myself included, precisely because it preserves the status quo and makes major changes to American laws and institutions exceedingly difficult undertakings requiring bipartisan votes most of the time. Most recently, Republicans received a hard lesson in this when they attempted to repeal Obamacare some 70 times and couldn’t even do so on a party line vote when they were stymied by “maverick” Senator John McCain. Even though Obamacare has been far from a popular piece of legislation since it was past, earning the President the infamous lie of the year award for claiming if you like your doctor, you can keep your doctor, costing far more than anticipated and increasing costs for consumers far more than promised, so much so that much of the current shutdown fight concerns spending trillions more in subsidies to keep prices reasonable, it remains in place mainly because the filibuster has protected it. If the filibuster was gone tomorrow, Obamacare would likely be gone with it, as would potentially countless other laws from the Voting Rights Act to who-knows-what else. To be sure, in many cases, the goal would be to replace it with something the Republicans felt was better, and when the Democrats return to power and seek to overturn Republican supported legislation, they would say the same, but how is it possible to be sure that’s the case? In this regard, we might update the old adage about a bird in the hand being worth two in the bush to the current law of the land is worth two alternative, strictly partisan proposals passed on narrow votes, potentially paid for with pork.
At the same time, it’s also clear that the filibuster isn’t what it used to be. Once upon a time, there wasn’t much the Senate could do without crossing the 60 vote threshold, but over the past few decades, new avenues have opened in shall we call it creative legislating to get what you want without compromise? In 2013, then Senate Majority Leader Harry Reid changed the Senate rules to allow a simple majority vote on all Presidential nominations except the Supreme Court. Back then, Democrats believed that Republicans were too slow to approve President Barack Obama’s judicial picks, after having blocked three potential judges to the United States Court of Appeals for the District of Columbia Circuit and there was at least some truth to this. Under President Obama, the Senate approved 143 out of 173 (83%) judges before the change to the filibuster, compared to George W. Bush’s first term 170 of 179 (95%), Bill Clinton’s 170 of 198 (86%), and George H.W. Bush’s 150 of 195 (77%). Regardless, you will not be surprised to learn the changes to the filibuster didn’t end there, far from it. Sure as then Senate Minority Leader Mitch McConnell warned Majority Leader Reid, “You will regret this, and you may regret it a lot sooner than you think,” it only took four years for the Republicans to remove the filibuster requirement for even Supreme Court nominations after Democrats attempted to stop Neil Gorsuch, President Trump’s first pick. When President Joe Biden took office in 2021, there were many Democrats who demanded the removal of the filibuster entirely, but Senators Joe Manchin and Kyrsten Sinema prevented them from doing so. More recently, Senate Majority Leader John Thune has allowed consideration of joint resolutions of disapproval under the Congressional Review Act, using the current policy budget baseline for scoring the Big Beautiful Bill, and allowing the Majority Leader to proceed with multiple nominations at the same time, further eroding minority power and the filibuster. Nor is this the only way Congressional leaders have done so. As the filibuster has been weakened, they have also increased their use of the reconciliation process to pass larger and larger bills through the Senate with bare majority votes. This practice was first created in the Congressional Budget Act of 1974 as a means to address the deficit by forcing Congress to cut spending or increase revenue, conceived only as impacting mandatory spending, revenue, and the federal debt limit with the Senate limited to one bill per year affecting each subject, but it has since expanded.
Though it was not used until 1980, by 1996 it was being adapted to other purposes than merely the budget and the deficit. President Clinton relied on it to change welfare work requirements under the Personal Responsibility and Work Opportunity Act, what was regularly known as welfare reform. During the same period Republican Senators also got in on the act, using reconciliation to pass their preferred policies even knowing President Clinton would veto their efforts. From there, President George W. Bush got even more creative, relying on reconciliation to enact his tax cut agenda twice, first with the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Jobs and Growth Tax Relief Reconciliation Act of 2003. While both appeared to violate the spirit of the original process by prioritizing preferred policies rather than merely addressing the budget, at least these were arguably budget related measures given the focused on the tax code. President Barack Obama, however, pushed the limits even further, using reconciliation to salvage his signature healthcare bill in an at the time unprecedented fashion. Though the Democrats enjoyed a 60 vote super majority in the Senate when Obamacare was first passed, they lost a seat in a special election and turned to reconciliation to revise the bill under the Health Care and Education Reconciliation Act of 2010. In 2016, Republicans attempted to repeal it the same way, only to meet a veto. The next year, President Trump attempted to use reconciliation for repeal as well, but couldn’t manage even a bare majority when Senator McCain gave this infamous thumbs down, prompting him to change course and pass his tax cut agenda similar to his predecessor, President Bush. Regardless, it was President Joe Biden who mastered the art of pushing reconciliation to its limits. He relied on the process to pass his American Rescue Plan, which was essentially a massive set of subsidies to supposedly deal with the lingering effects of the pandemic, and the Inflation Reduction Act which was supposed to fight global warming, neither of which had anything to do with budgets or deficits, save exploding them. When President Trump returned to office earlier this year, he relied on reconciliation to pass the Big Beautiful Bill which went well beyond the budget and the deficit into a literal grab bag of his policy positions, essentially passing his entire agenda on a party line vote.
Whatever the merits or even demerits of these uses, or your opinion on any of these pieces of legislation, it’s clear that the filibuster isn’t what it used to be and if past is prologue, we can likely expect more changes in the future to increase majority power. The question before us over a month into what will probably prove the longest government shutdown in history, is the filibuster relevant at all anymore? For his part, President Trump doesn’t believe so, posting at least twice that Senate Republicans should eliminate it entirely. “THE CHOICE IS CLEAR — INITIATE THE ‘NUCLEAR OPTION,’ GET RID OF THE FILIBUSTER AND, MAKE AMERICA GREAT AGAIN!,” he wrote on Truth Social on Thursday evening. On Friday, he followed up with “It is now time for the Republicans to play their ‘TRUMP CARD,’ and go for what is called the Nuclear Option — Get rid of the Filibuster, and get rid of it, NOW!” and “Well, now WE are in power, and if we did what we should be doing, it would IMMEDIATELY end this ridiculous, Country destroying ‘SHUT DOWN.’” For their part, Senate Republicans immediately pushed back on the idea. “Leader Thune’s position on the importance of the legislative filibuster is unchanged,” spokesman Ryan Wrasse explained on Friday. A spokesperson for Senate Majority Whip John Barrasso said the same, “Senator Barrasso’s support of the filibuster is unchanged” while Senator John Curtis posted on X that he was a “firm no” and explained, “The filibuster forces us to find common ground in the Senate. Power changes hands, but principles shouldn’t. I’m a firm no on eliminating it.” Perhaps needless to say, what principle was at stake remained unsaid in a world where recalcitrant Democrats have refused to fund the government at existing levels and are demanding more spending simply to keep the equivalent of the lights on, even though they hold majority power nowhere in government. While the Democrats claim they are standing on principle as well, some of their recent statements reveal that they are really playing politics. Rather than their position on the shutdown getting worse as the American people are suffering, Senate Minority Leader Chuck Schumer recently claimed that, “Every day gets better for us.” Senator Bernie Sanders insisted that if “you reopen the government, we lose our leverage.” Senator Martin Heinrich echoed the thought, claiming opening the government gives “the President more leverage.” Representative Katherine Clark acknowledged the pain, but still insisted that leverage is more important, saying “There will be families that are going to suffer… but it is one of the few leverage times we have.” Exactly how much suffering are they willing for the American people to endure? A Senior Democrat Aide claimed “The party will not concede short of ‘planes falling out of the sky.’”
Of course, Democrats are likely to point out the Republicans have made demands of their own during previous shutdown battles, at least some of which were purely political, and they would be correct to do so, but that only underscores the importance of the question: Should a minority party be able to shutter the government and by their own admission cause widespread suffering because of a tool some have claimed is a relic of slavery, especially when the nature of that tool has changed over the past three decades or more? Personally, I am inclined to say yes, the filibuster should remain in place at least for now. While this doesn’t mean we shouldn’t acknowledge how it has changed in recent years or assuming that it continues to do so, there will reach a point where it becomes another useless parliamentary procedure, it still serves as useful check majority power in my opinion, even in its more limited form, helping to preserve the status quo by preventing major pieces of legislation from coming and going with the political winds. Ironically, President Trump might have unintentionally explained this himself in a follow up post when said, “TERMINATE THE FILIBUSTER, NOT JUST FOR THE SHUTDOWN, BUT FOR EVERYTHING ELSE. WE WILL GET ALL OF OUR COMMON SENSE POLICIES APPROVED (VOTER ID, ANYONE?) AND MAKE AMERICA GREAT AGAIN! REMEMBER, THE DEMOCRATS WILL DO IT IMMEDIATELY, AS SOON AS THEY GET THE CHANCE. OUR DOING IT WILL NOT GIVE THEM THE CHANCE. REPUBLICANS, BE TOUGH AND SMART! THE DEMS ARE CRAZED LUNATICS, THEY WILL NOT OPEN UP OUR COUNTRY NO MATTER HOW MANY PEOPLE ARE IRREPARABLY HARMED!” Setting aside that there might not be fifty votes for some of the more radical aspects of the Republican agenda, what’s going to happen when the Democrats inevitably control Congress and the White House again, perhaps as soon as 2029? Without the filibuster, they will simply repeal and replace whatever President Trump and the Republicans pass and the Republicans will surely do the same as soon as 2033, a process that will continue indefinitely, resulting in both less stability and likely more partisanship as partisans in general will have significantly more power. Thought it is a valid concern that Democrats will proceed to do this anyway, the future is not yet written. They failed to do so when President Biden was in office and might well fail again whoever the next Democrat President is. In the meantime, we should stay the course for as long as possible, either until the filibuster is meaningless or until the Democrats go nuclear on their own.
Confessions of a Conservative Atheist 