Populist Republicans have launched what is likely a doomed attack on the Senate filibuster, the long-standing tradition that requires 60 out of 100 votes in the upper chamber to pass most legislation. Fifty-one Republican senators voted Tuesday to advance the Save America Act, a voter-identification law, but the Senate’s Democratic minority will use the filibuster rule to block the bill. At that point, at least a handful of GOP senators are expected to refuse to blow up the filibuster to jam the legislation through, depriving populists of the 50 votes they’d need for the “nuclear option.”
Missing from the fight over the filibuster, though, is the best argument against it. Republican advocates of the nuclear option mostly follow a zero-sum partisan logic: Better to escalate and grab as much advantage as possible before Democrats do the same. But there’s also a positive-sum case that curbing the filibuster would be better for the constitutional system by giving the Senate more freedom of action. That could help put Congress, rather than the presidency, back in the driver’s seat of American politics.
Naturally, few Republicans want to make that argument. It’s the zero-sum, beat-the-other-guys justification that gives the nuclear option its appeal. The GOP base wants this president in the driver’s seat.
But sometimes partisan motives inadvertently align with constitutional values. The Founders intended Congress — the gathering place of elected representatives from across the country — to be the crucible of self-government. The filibuster, by disabling Senate majorities from advancing their agenda, transfers political energy from Congress to the president, his cabinet and the administrative agencies they control.
There are a number of reasons for Congress’s decline in the past 10 or 15 years: polarization, low salaries, the incentives of social media. But the Senate filibuster is also part of the story.
Consider the war in Iran. Congressional debate on the Iranian threat could have helped clarify the purpose and limits of any military operation. But Democrats would almost certainly have had enough votes to filibuster legislation authorizing President Donald Trump to use military force. To the extent anyone in the administration wanted to go to Congress before launching a war (as the Constitution, er, suggests), that political fact would have been a strong argument against the idea.
The point (Iran is just one salient example) is that when the threshold for legislation is high, presidents are less likely to consult with Congress on national priorities, instead trying to achieve them through other means. That lack of congressional deliberation makes government less legitimate. Invoking the nuclear option could route more of the business of politics and governance through the legislature.
The filibuster would make more sense if it still existed in its 2012 form. Then, it still applied to presidential appointments, meaning that 41 senators could block a president’s nominee for roles like defense secretary and attorney general — the officers through whom the president exercises his major powers. The confirmation process is among the Senate’s most important tools for influencing the executive.
But in 2013, during Barack Obama’s presidency, Senate Democrats invoked the nuclear option for presidential appointments, changing the Senate rules so the GOP minority couldn’t hold up nominees. In retrospect, that move was even more constitutionally significant than most realized. It tipped the balance of power decisively toward the president — granting him the ability to install the heads of the executive branch on party-line Senate votes — without any countervailing increase in the powers of Congress.
Perhaps today’s imperial presidency is more desirable (or less undesirable) than an imperial Congress. Michael Fragoso, the former chief counsel to Sen. Mitch McConnell (R-Kentucky), points out that while an aggressive president is still constrained by the courts, there are fewer limits on the ability of an “unchecked legislature” to transform society.
And this is where the filibuster debate comes back to partisanship. Former Trump adviser Steve Bannon memorably compared today’s Republican-controlled Congress to the Russian Duma — that is, a rubber-stamp legislature for an all-powerful executive. But if Republicans nuke the filibuster, the next Democratic majority in the Senate will also be less constrained. It might not resemble the Russian Duma so much as the Soviet Politburo — that is, an all-powerful, radical body that really does hold the cards.
Though a runaway executive is the problem today, in other words, a runaway Congress could be the problem tomorrow. There’s no permanent formula for a healthy balance of power, but how’s this for a compromise no one would accept: Nuke the filibuster for legislation, and restore it for presidential appointments. That way the minority party could no longer block party-line legislation — but it would get a say, once again, in the people who exercise executive power on the president’s behalf.
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