In a recent interview with Jason Willick of The Washington Post, Sen. Kyrsten Sinema — the outgoing once-Democratic and now-independent senator from Arizona — defends the Senate filibuster on institutionalist grounds. The filibuster is a central facet of the Senate’s critical role in slowing down the legislative process and facilitating compromise, argues Sinema, and she laments that the filibuster will eventually be scrapped because “there are fewer institutionalists in the Senate.”
But Sinema should not despair. There is still time for Senate institutionalists like her, Sen. Mitt Romney, R-Utah, and Sen. Joe Manchin, D-W.Va., to put the filibuster on more stable footing that may prevent its total obliteration.
When leading institutionalists like Romney, Sinema and Manchin defend the Senate filibuster in its current operation, they neglect core precepts of institutionalism. Yuval Levin has explained that institutions earn and build trust when they competently shoulder their responsibilities. Institutions lose trust when those who inhabit them fail to live up to their assigned roles. In short, an institution derives its strength from doing its job.
As the upper chamber of Congress, the Senate’s institutional role is to cool popular passions, deliberate on the weightiest issues of the day and forge solutions to the nation’s most daunting problems. As Robert Caro has written of the Senate’s golden years in the early 1800s, the likes of Daniel Webster, Henry Clay and John C. Calhoun fought “battles over the most momentous issues of the age, and the Senate was often the dominant arena in which those issues were decided.” That is no longer the case. The Senate is not living up to its role as America’s great deliberator and problem solver — and the modern filibuster is a core contributor to its institutional decline.
To be sure, there exist many reasons for the Senate’s institutional weakness. Partisan polarization is an obvious leading contributor. Romney, Sinema and Manchin cannot combat, let alone reverse, the realities of partisan sorting and polarization. But they can reflect critically on how polarization might interact with the Senate’s preexisting rules in ways that weaken the Senate and prevent it from performing its duties. They can then work to amend those institutional rules, like the filibuster, as needed. For example: If the parties are in near parity and don’t agree on very much of importance, then an institutional rule like the filibuster — which requires a de facto supermajority of 60 senators to pass most bills — might be transformed from a useful moderating force into a near-insurmountable barrier. That is a problem.
Romney, Sinema and Manchin will not be senators much longer. Sinema predicts, fatalistically, that the filibuster will be scrapped fairly soon after they have all departed. As things stand now, she is right — at least whenever Democrats next control the House, Senate and presidency. But it is too soon for fatalism. Over half a year remains in each of their terms. Sometimes, reform is urgently necessary to ward off drastic change. Reforming the filibuster so that it can achieve its intended results — even if that means tinkering with its current structure — could save the filibuster and its institutional virtues.
If these three senators want to do something meaningful to restore the Senate’s institutional strength without bringing about the legislative whiplash that they worry would follow the filibuster’s wholesale elimination, they would make reforming the filibuster their final priority with the time they have left in the Senate. We have our own ideas about what that reform should look like. We’ve discussed them in detail here and here. But even if Romney, Sinema and Manchin find our particular reform proposal objectionable, these three institutionalists should not depart the Senate in a few months without taking a serious stab at filibuster reform.
Given their courage and commitment to their institution, all three of these senators deserve our respect. Together they now have the chance to lead one last time to strengthen the institution about which they rightly care so deeply — before it’s too late.
Thomas Harvey and Thomas Koenig are recent graduates of Harvard Law School.