Opinion

Opinion: To Filibuster or Not to Filibuster

The American public wants government to act

Senate Minority Leader Charles E. Schumer admits that the filibuster rule change instituted by former Democratic leader Harry Reid made it more difficult for his party to oppose President Donald Trump’s Cabinet picks. (Bill Clark/CQ Roll Call)

To filibuster or not to filibuster. That is the question and only Senate Democrats can supply an answer. The choice is clear. More uncertainty for the country and putting economic growth at risk — or a willingness to accept compromise neither side may like but both can live with.

Yet a government shutdown looms once again, the markets are rattled and frustration is rising — especially for House Republicans who have sent bill after bill to the Senate only to have Democrats block consideration.

It’s clear the Senate filibuster — or just the threat of it — has become the enemy of progress. But is it the structure of the filibuster itself or simply the unwillingness of the minority to cooperate or compromise?

I think most people agree that the filibuster wasn’t designed for this purpose but rather to give voice to the minority party’s legitimate views, with an emphasis on legitimate. But today, it has become little more than a partisan roadblock not used but abused by Senate Democrats to oppose any and all legislation proffered by the majority to achieve two goals: deny President Donald Trump any and all legislative victories and push the self-serving narrative that Republicans can’t govern.

Watch: David Hawkings’ Whiteboard — What’s a Filibuster?

Tug of war

At least 375 bills are currently awaiting action in the Senate as Democrats, led by Chuck Schumer, seek to slow-walk Republican legislation, even bills with bipartisan support. Rather than accept that each side must give a little, they seem to prefer concocting poison pills and dreaming up parliamentary delays to ensure nothing gets done rather than working to find solutions voters want.

It’s not surprising that we are, once again, beginning to hear calls for an end to the filibuster. Both parties have battled and exercised the filibuster going back more than a century.

Over the decades, Senate rules have been changed a number of times to address instances when the majority believed the minority had abused the filibuster by deadlocking the Senate simply to score political points. Both Republicans and Democrats have backed and opposed rule changes, with their enthusiasm usually dependent on their majority or minority status.

Recent history has seen a tug of war with each party considering rule changes to end or limit filibusters. In 2003, Majority Leader Bill Frist, frustrated with the filibustering of judicial appointments by Democrats, introduced a resolution to change Senate rules and allow a simple majority vote, spurred in this case to break a logjam holding up a number of judgeships. For two years, Frist held off in the hope of finding a way forward with the Democrats.

It was a difficult decision for Frist, who instinctively rejected making the change but whose patience was wearing thin for what amounted to Democratic obstructionism. By 2005, however, there was little doubt that Democrats planned to continue to hold up five crucial judicial appointments, and Frist was ready to move.

Only when Democrats believed the majority leader was serious about a rule change did negotiations between the two parties produce results — with Democrats agreeing to a compromise that would allow three of the five nominations to move to the floor for a vote. In return, Republicans would not employ the nuclear option.

Watch: Watch the Senate Change its Rules for Supreme Court Nominees

Kaboom

It would be Democratic Majority Leader Harry Reid who would finally blow up the filibuster rules in 2013 to allow a simple majority of 51 votes to approve all executive branch positions and judicial appointments with the exception of the Supreme Court. By going nuclear, Reid paved the way for a Republican majority in 2017 to broaden Reid’s change to include the Supreme Court.

Republicans opposed Reid’s decision to go nuclear, with Minority Leader Mitch McConnell warning Democrats, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”

He proved to be more than right.

Today, Schumer admits that the Reid rule changes made it more difficult to oppose Trump’s Cabinet positions and we all know what happened with the Gorsuch nomination. Precedent matters.

For both parties, the filibuster is a double-edged sword; but when 41 members of the Senate can effectively bring all three branches of government to a halt, the American public grows frustrated too. If last year’s election proved anything, it was that voters wanted government to act — to solve problems not bicker over partisan politics.

The outcome of this Congress’ filibuster debate is up to Schumer and his minority-party members. Leader McConnell has already indicated his opposition to expanding the filibuster exemptions but that means Senate Democrats have to decide whether to follow Reid’s 2005 lead and seek a solution or go down Reid’s path in 2013 and play politics. We know how that turned out for the former leader.

John Eastman, a highly regarded law professor and constitutional scholar, wrote a thoughtful piece on filibusters for the National Review in 2003. In it, he argued for Sen. Frist’s resolution on constitutional grounds, and closed by quoting former Sen. Henry Cabot Lodge who said, “To vote without debating is perilous, but to debate and never vote is imbecile.”

The Senate is at a major inflection point. More uncertainty isn’t what the country needs.

David Winston is the president of The Winston Group and a longtime adviser to congressional Republicans. He previously served as the director of planning for House Speaker Newt Gingrich. He advises Fortune 100 companies, foundations, and nonprofit organizations on strategic planning and public policy issues, and is an election analyst for CBS News.

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