At least two Republican senators who resisted nuking the Senate filibuster in 2025 might take a different tack in 2026. “It’s something I’m giving serious consideration to now,” Kansas Sen. Roger Marshall told Fox News, citing “the last government shutdown” and the prospect of another in January. Sen. Markwayne Mullin of Oklahoma announced: “My position on the filibuster has changed.” He told Fox News host Will Cain that there is a “conversation” in the GOP caucus about eliminating the filibuster “when it comes to appropriations.”
My views are also changing. I’ve always thought of the Senate’s 60-vote requirement for passing most legislation as a healthy check on narrow partisan majorities in the legislature. But how well is that working now? Donald Trump is showing that when a party narrowly wins the White House, it can impose sweeping policy change through the executive branch. At the end of Trump’s first year back in office, the filibuster is looking less like a moderating force and more like an excuse for presidents to ignore Congress.
Trump’s second term has brought a historic burst of executive policymaking. The Pew Research Center tallies 221 executive orders in 11 months, compared with 162 in President Joe Biden’s four years. Trump has overhauled immigration, imposed worldwide tariffs, restructured government agencies, sent progressive universities into retreat and brought the U.S. to the brink of war with Venezuela — all without votes of Congress.
Some of those policies I agree with, some I don’t. The point is that the White House is the sole driver. Instead of debating and authorizing Trump’s agenda, the Republican-controlled Congress has been a potted plant. It seems incongruous to maintain a restriction only on Congress’s ability to act while the executive goes into overdrive.
Put differently: The filibuster functions as a brake on radical change when Congress is the center of the political system. When the president is at the center, the benefits are less clear. The costs also become more apparent because the filibuster, as an obstacle to legislating, becomes a pretext for presidential overreach.
Want to change U.S. trade policy? The Senate’s free-traders might filibuster a bill; better to comb the statute books to find authority for the president to tariff unilaterally. Want to threaten military force against Venezuela? The Democrats will muster more than 40 votes to block a congressional authorization; better to build an armada around the country without congressional debate. As Thomas Harvey and Thomas Koenig argued in a 2023 article in National Affairs, reforming the filibuster so legislation is easier to pass could help restore some of Congress’s importance.
The way the filibuster has eroded amplifies the problem. Democrats started the process in 2013 when they eliminated the 60-vote threshold for most presidential nominees. That means presidents can staff the executive branch with subordinates who are unlikely to push back on ambitious White House policies.
That change was coming sooner or later, and it won’t be reversed. But from a separation-of-powers perspective, it might have been better if the legislative filibuster had been nuked first instead. That way, it would have been easier for Congress to pass laws but harder for presidents to install boundary-pushing partisans in high executive office. The current regime — simple majorities for personnel, supermajorities for legislation — tilts the system toward executive-led governance, with legislation as an afterthought.
One check on executive branch nominations remains: the blue slip, a custom that allows senators to block presidential nominees for judge and prosecutor in their state even if the nominee would win a majority in the full Senate. The blue slip has interfered with Trump’s efforts to get prosecutions he wants in Virginia and New Jersey. If the president’s executive blitz has lowered my opinion of the filibuster, it has raised my opinion of the blue slip as a (mild) safeguard against partisan prosecution.
One reason the blue slip tradition might be durable is senators’ self-interest. Both Republican and Democratic senators want a say in picking the prosecutor who might one day investigate them. The benefits of the legislative filibuster are more asymmetric. Democrats probably have more to gain as a matter of policy from eliminating it; that would give them a path to confer legal status on people in the country illegally, pack the Supreme Court and create a national right to abortion. They came within a hair’s breadth of eliminating it in 2022 to rewrite state election laws.
I’d probably hate most of the legislation Democrats would pass if they controlled the House, Senate and White House. But the continuing drift toward rule-by-executive might be more dangerous for the republic than harebrained policies arrived at through the representative process, where senators are accountable for their votes.
The partisan case for nuking the filibuster grows out of enthusiasm. My increasing openness to the nuclear option grows out of resignation. The filibuster is supposed to promote stability, but the 21st century has seen one president after another radically reverse the policies of his predecessor. If we’re going to have political volatility, better that it’s at least channeled through Congress, with deliberation and debate.
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