There’s a meme that goes around Twitter every now and again: express your unpopular opinion. Based on conversations I’ve had through the years, my views on the filibuster might be unpopular with large swathes of the right and probably even the left.
I’ve never been comfortable with the filibuster. The 60-vote threshold seemed like an especially onerous and unfair threshold when it came to judicial appointments, and I advocated nuking the filibuster long before Harry Reid helpfully did so a few years ago. Therefore, I was happy when Harry Reid and the Democrats abandoned the judicial filibuster, and not just because I knew then it would eventually come back to bite them on the ass.
But the filibuster’s artificial 60-vote threshold seemed unfair even when it came to ordinary legislation. While it is not unconstitutional, it is certainly an extra-constitutional mechanism. Sure, the Senate is free to set its own rules, and the constitution’s language doesn’t prohibit a higher floor either in the context of the Senate’s advice and consent role or for legislation to be deemed as passed by the Senate. Yet it seemed then, and still seems now an extra barrier to getting things done.
Conservatives in particular view the filibuster as a device that works in the interests of limited government. And whichever party happens to be the minority at the moment values the filibuster as a mechanism to help preserve their interests. But the constitution itself is already a document designed to slow the machinery of government. The filibuster is a cheat, and arguably does more to diminish reliance on these other constitutional designs. For instance, the higher threshold to get legislation through the Senate could lead (and has lead) presidents to make end-runs around Congress. In these cases, the filibuster not only doesn’t prevent whatever ill-considered action from going through, it promotes other unconstitutional behavior from the president. It also eliminates the opportunity for compromise that would minimize the potential deleterious effects of ill-advised action.
The filibuster is also unevenly applied. Depending on the specific type of legislation under consideration, it may not even be applicable. Now it no longer is available in the context of judicial nominations. This just leads to more parliamentary maneuvering that further undermines faith in the legislative process.
As alluded to above, reliance on the filibuster draws attention away from other constitutional mechanisms designed to restrain the government. The concentration of power in the executive and judicial branches is a much more serious threat to our constitutional order. If anything, the filibuster might prevent reforms from being enacted to address those concerns. The filibuster, especially if a conservative majority ever emerged in the Senate (I won’t hold my breath), actually would become a tool of the very administrative state we’re supposed to be fighting.
The filibuster is really designed to ensure debate takes place on contentious issues. I would have no problem with a system in which failure to invoke cloture simply meant debate would continue for some amount of time. But real debate would have to take place. Then, after the pre-determined period elapsed, a vote would occur regardless of whether the 60-vote threshold is met.
I thus have no problem with the filibuster as a means of slowing down the process to allow for more debate and potential compromise. It should not be an artificially high upper threshold meaning nothing gets by the Senate without a super-majority.
Letters from Cato 