Is the legislative filibuster doomed? Ted Cruz thinks so, and the Washington Examiner’s Philip Klein agrees.
We don’t have to take too seriously Cruz’s farcical claim that “There is nothing in the history of the Senate remotely like what we’re facing right now, which is the filibuster being used on everything.” Of course, that was the case for the first six years of Barack Obama’s presidency, when Democrats had the majority in the Senate. Indeed, virtually all major legislation has been filibustered since 1993, when Republicans reacted to Bill Clinton’s presidency by ratcheting up the filibuster wars.
Democrats copied that during George W. Bush’s presidency, and even added some new wrinkles, filibustering a handful of nominees for circuit courts. Then Republicans ratcheted it up again in 2009, creating a true 60-vote Senate, where absolutely everything had to earn 60 votes to pass. Democrats in 2017 did nothing new at all; they just copied what Republicans had done.
But is Cruz correct that “If the Democrats ever regain the majority, they’ll end legislative filibuster”? A whole lot of Democrats were absolutely convinced that Republicans would eliminate the filibuster as soon as they had a Republican president and Republican majorities in the House and Senate. That didn’t happen in 2017, and it seems very unlikely to happen in 2018.
Here’s the deal: On the one hand, the sweet spot for eliminating the filibuster is not just unified government, but somewhere around 54 to 57 majority-party senators. A party with 60 senators probably won’t bother because they’ll defeat the filibuster. If they’re close? Democrats compromised to pass financial reform when they had only 59 senators in 2010, and only 58 in early 2009 to pass the stimulus bill. If they only have a narrow majority, as Republicans have now, it’s unlikely they’ll have 50 for changing the way the Senate runs.
Remember, while a simple-majority Senate would be good for the majority party, it removes a lot of the influence of individual senators. And senators throughout history have cared a lot about that influence, both for electoral reasons — it allows them to separate themselves from their party — and because they like to actually get things done, rather than turning all the governing over to party leaders.
It’s also true, as Josh Huder and other congressional scholars have pointed out, that the filibuster gives the majority party some ability to duck responsibility for opposing some things they don’t like but would rather not oppose.
It also matters how the filibuster is used. Democrats just used it to shut down the government, if only for a long weekend. If a minority party does more than that — shut down the government for an extended period, or block a needed increase in the debt limit and threaten a government default — then the majority party may feel it has no choice but to act. More broadly, using the filibuster to gain bargaining leverage is one thing; using it to force minority rule is quite another.
Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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