The Government Shutdown and the Filibuster

David Super

     Senate Majority Leader John Thune evidently plans to keep bringing up the House-passed continuing resolution daily so that Senate Democrats must repeatedly deny it the sixty votes it needs to pass.  Meanwhile, House Speaker Mike Johnson has been keeping his chamber out of session so that Republicans can argue that the only way to end the shutdown quickly is to pass the House Republicans’ continuing resolution. 

     This is all rather silly theater.  Senate Democrats have proposed their own continuing resolution, and the government shutdown remains in place as much because Senate Republicans deny sixty votes to the Democratic bill as because Senate Democrats deny sixty votes to the Republican bill.  If the Senate were to agree on a bill, the House could be brought back in less than a day.  Indeed, if the Senate passed a continuing resolution with broad bipartisan support, the House could go back into session almost immediately with only a handful of Members, vote to suspend the rules, and pass the legislation with everyone agreeing not to prompt a quorum call. 

     Various informal bipartisan groups of senators are forming to try to facilitate the search of a settlement, but with the Republican leadership determined to make Democrats buckle there is no receptivity at the moment to any mediation.  Republicans seem to be shifting from claiming that Democrats are demanding health insurance for undocumented immigrants – an outright lie that most reporters recognized as such – to saying that health insurance premiums should be addressed in December – which is after open enrollment and after many low- and moderate-income families will have had to make painful financial choices about whether they can continue to afford health coverage.  We may see several rounds of this grasping for a winning message before anyone considers modifying their substantive position. 

     Underlying all this is the question of why Majority Leader Thune does not eliminate the filibuster and then pass the continuing resolution with the simple majority that he possesses.  It would seem that he is the one person who could end the shutdown tomorrow without yielding on any policy positions.  We cannot be sure he is not doing so, but several explanations seem likely.

     First and foremost, he likely does not have the votes.  Forty of the fifty-three Senate Republicans voted against the Democratic resolution to end the filibuster in 2022.  Many surely did so primarily for partisan reasons, but some likely did so out of commitment to the Senate’s rules.  Republicans then pointed out, correctly, that Senator Schumer’s attempt to eliminate the filibuster flatly violated Senate rules, which require a two-thirds vote to change the filibuster.  Some may feel that Senate Democrats’ attempted disregard for Senate rules justifies their doing the same, but if even four feel bound to honor the rules they just defended, Senator Thune would lack the votes to abolish the filibuster, assuming all Democrats are comfortable reversing their prior position and defending the filibuster.  (Rule XXII.2’s prohibition on amending rules relating to the filibuster with less than a two-thirds vote is why various proposals for “moderate filibuster reform” are meaningless:  if one party can breach Senate rules to make the changes it wants, nothing will stop the other party from doing likewise when it has the majority.) 

     Although the filibuster has certainly been employed on behalf of ignoble causes on plenty of occasions, it also has been employed to protect crucial progressive legislative achievements.  At its core, the filibuster is a powerful moderating force in the Senate and in the federal government as a whole.  Presidential elections are winner-take-all.  The disappearance of moderates in both parties have made elections to the House of Representatives winner-take-all as well.  The conservative supermajority on the Supreme Court has made its more liberal members irrelevant on most hotly-contested issues.  The filibuster makes the Senate different:  the only place in the federal government where the minority holds real power without needing a catastrophic split in the majority.

     Serving in a Senate where every senator matters because both parties matter is far more attractive for many than serving in the House, where the majority’s petty abuses of the minority abound.  Forty-five Republican senators served in the Senate minority and surely can imagine how much more frustrating those years would have been if the majority had not been forced to work with them.  Senate committees’ partisan composition is proportionate to the parties’ shares in the Senate as a whole because any other plan would be filibustered; House majorities routinely stack committees egregiously.  The House can be an extremely nasty place on a personal level; although senators are no more inclined as a group toward courtesy, they have to treat each other much better because an angry senator can do a lot of damage.  The filibuster is the main reason why. 

     All but two Democratic senators voted to eliminate the filibuster in 2022 but only because they knew those two – Senators Joe Manchin and Kyrsten Sinema – would not.  Had their votes mattered, at least ten more Democratic senators likely would have voted to preserve the filibuster.  A significant number of Republicans likely feel similarly, publicly condemning Democrats’ “obstructionism” but unwilling actually to override it and turn the Senate into the House of Representatives’ clone.

     The filibuster also saves Republicans from painful dilemmas resulting from their party’s rapid swing to the far right.  Where the filibuster is available, they can loyally vote for repugnant bills knowing that the legislation has no chance of passing.  (In this regard, the Senate filibuster also saves House Republicans from similar dilemmas.)  Perhaps our Republic would be stronger if Republicans had to vote on the actual merits of legislation, but many likely would be primaried and defeated if they did.  In these perilous times, we should not scoff at devices allowing somewhat moderate Republicans to remain off the radar and thus in office. 

     For each party, the narrow question is whether protecting the public policies they have is more valuable than any gains they could hope to force through in a purely majoritarian system.  The Trump Administration is providing a compelling lesson for the complacent about the enormous power of destruction.        Defending civil rights and environmental laws remaining from more enlightened eras surely is more valuable than whatever Democrats might accomplish next time they have “trifecta” control of the federal government – especially if that could be destroyed before it has even taken full effect as soon as power swings back to Republicans.  This is especially true because the disappearance of the filibuster likely would expose more Democratic Members’ reservations about some measures activists support:  the potential benefits of pure majoritarianism for the progressive agenda likely are far less than progressives believe because they have failed to sell large parts of that agenda within the progressive coalition.  (Bullying skeptics into silence is not at all the same thing as persuading them to cast difficult votes.) 

     One strain of Marxist thought holds that things must get much worse before the masses can be mobilized to overthrow a corrupt regime and make things fundamentally better.  The people expressing these sentiments often have sufficient privilege to avoid many of the consequences of things getting worse.  And I see little evidence that gutting civil rights and environmental laws will spark any sustained public outcry that would carry us to anywhere better than where we are now. 

     Republican revolutionaries may prefer to maximize their destruction of progressive policies even at the expense of Democrats enacting more of the same the next time they hold a trifecta.  But many Republicans have close ties to businesses, which often prize policy stability to enable planning more than maximizing particular policies that they favor.  And on a human level, Republican senators get emotionally invested in projects back home that could be imperiled if Democrats take power with the same kind of scorched earth mentality that the Trump Administration has.  Finally, the many Republicans privately alarmed by the Administration’s wild policy gyrations, and fearful of being blamed for an economic catastrophe, may not be eager to surrender their one plausible avenue for making Democrats share responsibility. 

     Beyond partisan interests, the Trump Administration’s radical restructuring of our nation’s institutions makes the filibuster more important than ever.  Our constitutional order has always contained a mix of confrontational and cooperative elements.  We have battled over great issues, with elections having consequences, but the great majority of policy has been made through processes of persuasion and compromise, however flawed. 

     Mechanisms for persuasion and compromise are fast vanishing.  The non-partisan government service is being aggressively politicized in blatant violation of civil service and foreign service laws and the Hatch Act, with the Justice Department ignoring or even defending the lawlessness and courts apparently content that injured parties have no effective remedy.  The Administration is increasingly spurning notice-and-comment rule-making.  Independent regulatory commissions are being stripped of their independence with the enthusiastic support of the Supreme Court.  House and Senate moderates used form problem-solving alliances; now, they could hold plenary meetings in a phone booth.  The Supreme Court’s increasingly ideological approach, and its willingness to routinely humiliate lower courts, have weakened the judiciary as a place to pursue reasoned decision-making.  A variety of maladies have stripped universities of much of their traditional role in forging informed societal consensuses. 

     The filibuster – forcing negotiations even among ideological opposites – is one of the last vestiges of reason in a political system driven overwhelmingly by maximalism on both sides.  And with each political party having lost half of the past two, four, six, eight, and ten presidential elections – with no candidate securing even 54% of the popular vote – each has much to fear from unrestrained maximalism when the other one squeaks into office. 

     Progressives would be foolish to regard the filibuster as sacrosanct:  Democrats’ attempt to eliminate it in 2022 gave Republicans reason to doubt that their forbearance now will be reciprocated later.  Thus, Democrats will eventually have to accept a compromise continuing resolution falling far short of what the baying maximalists of social media – and their bot allies – would find acceptable.  Numerous Republican senators are maintaining strategic ambiguity on the filibuster. 

     But unless Democrats push Republicans to the wall, the filibuster – and with it some measure of leverage in the minority – stands a good chance of enduring.  Senator Thune has eroded the filibuster in two relatively small ways – broadening exceptions to the Byrd Rule’s limit on extraneous material in filibuster-immune reconciliation bills and allowing nominations to be voted on as a group – but his party’s willingness to go along with those tweaks by no means signals receptivity to a direct attack on the filibuster.

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