We all know of the many threats posed to conservatives by the outcome of the last election – Biden as president, Democrats in control of both chambers of Congress, the looming threat of court packing and new states added to the Union. But make no mistake about it. The most perilous and imminent danger to conservatives – and the nation writ large – at this moment rests not in the politicians themselves, but in the potential removal of one long-standing rule of the United States Senate.
If the rule stands, as it has for decades, it will protect the nation from the most gross excesses of creeping socialism. But if a growing number of progressive Democrats get their way, this all-but-sacrosanct Senate tradition will be relegated to the dustbin of history as a tidal wave of left-wing legislation is unleashed.
In the parlance of today’s internet clickbait, this senate rule might be termed the “one weird trick” for preserving the rights of minorities – not racial, but political ones. It is called the filibuster, and while many are familiar with the term, few have focused as tightly on the concept as we must now. Boiled down to its essence, the filibuster is what distinguishes the House from the Senate – and makes the passage of legislation far more difficult.
While the lower chamber has for well over a century required only a simple majority for a bill to pass and be sent on to the upper chamber, the Senate requires what might be called a supermajority – 60 votes – to end debate on most topics and move to a vote through a process called cloture. This effectively means any bill reaching the Senate requires 60% of the chamber to vote in the affirmative, as opposed to 50% plus one in the House.
Of course, we are well removed from the days of the traditional filibuster depicted in Mr. Smith Goes to Washington, when the senator played by Jimmy Stewart stands up and speechifies with righteous indignation for hours on end. These days, it is understood that if the requisite 60 votes can’t be mustered, the bill simply dies on the vine.
Strangely enough, the Senate filibuster was actually created accidentally in the early 1800s, when then-Vice President Aaron Burr unwittingly removed a rule permitting a majority of the chamber to force a vote on a bill. Americans then began referring to it with a word derived from the flibustier and filibusteros who pirated the seas on behalf of France and Spain. They came to call the delaying tactic, per the “hijacking” narrative, the filibuster.
For most of the first 100 years of the Republic, there was also a filibuster rule in the House. But in the 1888 elections, when Republicans won control of the White House, the Senate, and the House for the first time in nearly two decades, the GOP abolished the rule through a parliamentary maneuver – counting those present but not voting as part of a necessary quorum, instead of just those planning to cast a vote.
Both sides in this debate face a quandary. The temptations – and often deleterious outcomes – of unchecked power have been chronicled over centuries. At the same time, no one wants to give up their protection from being steamrolled by a simple majority when they aren’t in power. So removal of the filibuster becomes a matter of weighing the short-term gain of making hay while the sun shines against the-long term risk of a 180-degree flip when one becomes the victim of identical behavior from the other side.
The present state of play, where officeholders of the two major parties hardly speak to one another, is exactly why the Framers of the U.S. Constitution didn’t much care for political parties. They realized the rise of such formalized factions would inevitably create bitter divisions and ultimately lead to the type of ugly tribalism which pervades the Republic today. At the same time, they were realists, and thus they recognized that parties would become an inevitable outgrowth of the system of governance they envisioned.
Their distaste for political parties was surpassed by their fundamental commitment to the protection of political minorities from the tyranny of the majority. So would they have favored simple majority rule across the board in the situation we find ourselves in today – one party in full control, but headed by a president with nary a spark of life and the slimmest of majorities in both chambers of Congress?
So the debate is now joined. Should today’s Democratic majority (and any future Republican majorities), as they become increasingly frustrated by the Senate graveyard where House bills go to die, be able to simply pass into law by even a tie vote (broken by VP Kamala Harris) their entire wish list? Should the nation adopt, by the narrowest of margins, a higher minimum wage, an “assault weapons” ban, radical climate change legislation, “comprehensive immigration reform,” a new “Voting Rights” Act – all with a bare majority in Congress? Well, they would if the filibuster were abolished.
Both parties – Democrats with Obamacare, the GOP with their 2018 tax reform bill – have used a parliamentary procedure to affect an end-run around the filibuster – the so-called reconciliation process – enabling the passage of landmark legislation that otherwise would not have passed. But this applies to a very limited number of bills related to taxes, spending, and the debt limit.
Perhaps if it ain’t broke, we shouldn’t fix it. Common sense dictates that a simple majority should rule in the chamber closest to the people, where passion seethes, while the branch originally designed for more detached deliberation – cooler heads prevailing – should require greater consensus. This is why the Framers created a bicameral legislature with an upper and lower chamber. They designed a system that would require the support of a broad mass of voters and their representatives for the expansion of law and governmental authority.
The good news for those supporting continuation of the filibuster is that a near-Herculean effort would be required to abolish it. Removal of senate rule 22, defining the filibuster, would likely require the support of two-thirds of the members present and voting. But these days all things seem possible, and rest assured that after the dust cleared from such a weighty and audacious move, the decision to abolish this long-standing senate rule would rightly be summarized by future historians in one simple phrase: canceling the minority.
Read more from Tim Donner.