Ask Senate Minority Leader Mitch McConnell what he is most proud of accomplishing during the years when Democrats controlled both chambers of Congress and the White House, and he’s likely to point to his ability to save the filibuster from the trash can.
Democrats might disagree this is worth celebrating, at least right now. It blocked a lot of their favored legislation.
But that tune will undoubtedly change some day when Republicans win back the Senate.
The empowering of minority parties through the filibuster is, according to longtime congressional aide and Senate expert Martin B. Gold, exactly how things were designed to work, even though the Founders never specified the rules under which the Senate, or the House for that matter, should govern themselves.
Gold has authored “The Legislative Filibuster: Essential to the United States Senate,” published by the Orrin G. Hatch Foundation. It’s a well-researched and argued 98-page defense of the filibuster, and it ought to be required reading for everyone in the Senate, even if talk of scuttling the filibuster has faded for the time being.
Maybe that should go for the House, too. Anyone who watched how a narrow majority gave Republicans controlling power in the House last week (provided they can stay united) has an appreciation for what happens under strict majority rule. It’s the same thing that happens at the Utah Legislature each year, where the loyal opposition has little more than a voice.
The Founders, by contrast, were all about protecting the rights of the minority against the tyranny of the majority.
“If the Senate wanted to be efficient, it could model itself after the House of Representatives,” Gold wrote. “However, it plays a different role in our constitutional system and, for good reasons, does not seek to emulate the House.”
The threat of a filibuster from the minority, which requires 60 votes to end, makes the Senate more deliberative, less extreme and more open to compromise.
Former Sen. Lamar Alexander, a Tennessee Republican who spent an afternoon at the Deseret News in 1999 as a presidential candidate (yes, I was there), is quoted in the publication as acknowledging the filibuster even did its job when Republicans were in control.
Alexander said Democrats might have been right, after all, about not privatizing Social Security, a plan they filibustered to death.
“They might say that the country is better off after the Great Recession because they used the filibuster,” he said. “Maybe they were right. They slowed down and prevented a whole number of other important measures, from tort reform to the appointment of conservative judges. Maybe they were right. So, I think we should not define the filibuster by the number of times the majority seeks to cut off debate.”
Gold acknowledges what critics of filibuster often remind Americans — that the filibuster was used in ugly ways to keep civil rights legislation from passing. This, Gold writes, “uses an aspect of history to condemn a process that remains immensely important on numerous issues that have nothing to do with civil rights.”
The filibuster also preserves our government structure. “Only statutory changes are needed to add Senators for the District of Columbia and Puerto Rico by making them states, to enlarge the size of the House of Representatives and, by doing so, affect the composition of the Electoral College,” he wrote. “Amendments to law are all that is required to pack the Supreme Court and otherwise expand the federal judiciary.”
If the latter were allowed to happen, you could count on the court’s size swinging back and forth as majorities changed.
McConnell recently recalled for NBC News how he benefited from the Senate’s 50-50 split after the 2018 election, allowing him to “slow walk the organization of the Senate in the beginning,” until two Democrats, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, agreed to join him in opposing efforts to end the filibuster (Sinema has since changed her affiliation from Democrat to independent).
As a result, a number of Democratic bills, from voter reform to increases in the minimum wage, were doomed to failure, with Democrats unable to muster 60 votes to end debate.
But that’s not all it did. NBC notes, “It made Senate Republicans equal partners in negotiating deals on infrastructure, the CHIPS and Science Act, and a modest measure to toughen gun laws, all of which McConnell encouraged and voted for.”
In the publication, Gold quotes Sen. Charles Grassley, R-Iowa, saying one of the strengths of the filibuster is that it allows every Senator to offer an amendment to a bill on the Senate floor. Reports say House Speaker Kevin McCarthy has promised to essentially allow the same thing in the House. Critics say that could slow things down to a point where it takes days to pass a bill.
But, really, would that be such a bad thing?