President Trump initially presented his plan to shut down the federal government as a hopelessly misconceived gambit to force Democrats to fund his border wall. But now he is presenting it as something slightly different: a gambit to force Republicans to change the rules of the Senate to eliminate the filibuster on legislation.
This plan likewise stands no chance of success. The difference is that Trump actually happens to be correct on the procedural merits. And the fact that he’s attaching his procedural argument to a bad policy should not blind liberals to its abstract merits.
The Constitution deliberately creates multiple veto points that make it hard to pass legislation: you can’t pass anything without two different legislative bodies, the latter operating on staggered election times, plus the signature of a separately-chosen executive. Filibuster advocates constantly assert that the Founders created it. (“I’m not going to support a change in rules. The Founding Fathers set it up this way,” said Louisiana Republican John Kennedy last year.) But that’s simply false. The Constitution does not say anything about a filibuster, and indeed, lists a supermajority requirement only for certain functions, like approving treaties or removing a president. The filibuster evolved in the 19th century, and its threshold has changed over time, having been reduced to 60 votes in 1975.
More recently, the Senate has eliminated filibusters for cabinet officials, federal judges, and Supreme Court justices. There is also a loophole for budget-related laws, called “reconciliation bills,” which can be passed with a majority but which can only make changes to taxes and spending. Other laws need 60 votes to pass.
Nobody designed this system, and nobody ever would design this system. If you were only going to require a supermajority for some things, it would be for lifetime judicial appoints, not for such matters as the annual budget for the federal government. But since the latter falls under the arbitrary category of laws that can be filibustered, and building a wall falls under federal budget appropriations, it needs 60 votes.
Another bizarre thing about the Senate’s rules is that they can be changed at any time with a majority. Trump is demanding Senate Republicans do this so he can have the wall. Of course, if they were going to do this, they probably would have done it at the beginning of last year, when they held the House and could pass laws they liked. Eliminating the filibuster just days before Democrats win the House would make no sense whatsoever.
Senator Orrin Hatch revealed perhaps more than he intended when he explained today why he wants to keep the filibuster. “I’ve long said that eliminating the legislative filibuster would be a mistake,” he declared, “It’s what’s prevented our country for decades from sliding toward liberalism. It’s inconvenient sometimes, but requiring compromise is in the interest of both parties in the long term.”
Hatch’s last line is obviously at odds with recent history — the use of the filibuster has increased as bipartisan cooperation on every front has disappeared. But it’s Hatch’s second sentence that stands out: the filibuster has prevented the country from sliding toward liberalism.
That argument actually has some truth to it. Liberals, after all, are far more apt than conservatives to propose new laws to keep up with changing times. Both parties have ideas for laws they’d like to pass, but in general, liberals have more of then, and a system that favors stasis will work to conservatives’ advantage.
The particular construction of Senate rules highlights how slanted the system is. In 2010, Democrats assembled 60 votes to pass health care reform, a goal that had eluded them for decades. (Bill Clinton would probably have passed health care reform if not for the filibuster.) But in 2017, Republicans designed a bill to repeal that reform, which could pass through reconciliation. That bill failed the Senate, because it couldn’t gain 50 votes there. But the fact is that the existing rules of the game mean it takes 60 votes to pass health care reform and only 50 to repeal it.
This illustrates how the status quo benefits the right. Most conservatives policy goals involve tax cuts, spending cuts, or hamstringing Democratic regulatory reforms by defunding them. Few of these policies need 60 votes to pass. On the other hand, lots of ideas Democrats want to pass, from (small-d) democratic voting reforms to health care, do need 60 votes.
There’s no chance Republicans will follow Trump’s desire and eliminate the legislative filibuster. But if Democrats want to have any chance at enacting major reforms the next time they control government, they’re going to have to do it themselves. Trump’s demand to abolish the filibuster offers Democrats the perfect opportunity to show that they agree with him for more than just partisan reasons.
