The Senate’s coming conﬁrmation of Neil Gorsuch will improve the Supreme Court, and Democrats’ incontinent opposition to him will inadvertently improve the Senate — if Republicans are provoked to thoroughly reform the ﬁlibuster. If eight Democrats will not join the 52 Republicans in providing 60 votes to end debate and bring Gorsuch’s nomination to a vote, Republicans should go beyond extending to Supreme Court nominees the prohibition of ﬁlibusters concerning other judicial nominees. Senate rules should be changed to rectify a mistake made 47 years ago.
There was no limit on Senate debate until adoption of the cloture rule empowering two-thirds of senators present and voting to limit debate. This occurred on March 8, 1917 — 29 days before Congress declared war on Germany — after a ﬁlibuster prevented a vote on a momentous matter, the Armed Ship Bill, which would have authorized President Woodrow Wilson to arm American merchant ships. (He armed them anyway.)
In 1975, imposing cloture was made easier by requiring a vote of three-ﬁfths of the entire Senate, a change the importance of which derived from what Majority Leader Mike Mansﬁeld (D-Mont.) did in 1970: He created the “two-track” system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a ﬁlibustered bill and move on to other matters. Hitherto, ﬁlibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions ﬁled; in the 47 years since 1970, there have been 1,716.
Wisdom about the ﬁlibuster comes today from the other side of the Capitol, where House rules make ﬁlibustering impossible. Rep. Tom McClintock, a conservative California Republican, writing in Hillsdale College’s publication Imprimis, praises the Senate tradition that “a signiﬁcant minority should be able to extend debate” in order to deepen deliberation . Post-1970 ﬁlibusters, however, are used to prevent debate. As McClintock says, “the mere threat of a ﬁlibuster sufﬁces to kill a bill as the Senate shrugs and goes on to other business.”
McClintock urges the Senate to make a “motion to proceed” to consideration of a bill undebatable and hence immune to ﬁlibustering: “Great debates should be had on great matters — but not great debates on whether to debate.” And he says the Senate should abandon the two-track system. This would prevent the Senate from conducting other business during a ﬁlibuster but would require ﬁlibusterers to hold the floor. As he says, it was this mutual inconvenience that, between 1917 and 1970, made ﬁlibusters rare and productive of pressure for compromise to resolve the impasse.
As a result of today’s Senate paralysis, McClintock says, “the atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch.” The promiscuous use of faux ﬁlibusters — requiring 60 votes to proceed with consideration of, or votes on, ordinary legislation — blurs the implicit constitutional principle that extraordinary majorities are required only for extraordinary matters, such as proposing constitutional amendments, overriding vetoes and ratifying treaties.
The trivialization of ﬁlibusters — no longer requiring them to be strenuous and disruptive events — has deprived them of dignity. Restoring them to what they were would afﬁrm the principle that majoritarianism — simply counting numbers; government by adding machine — should be tempered by a reformed ﬁlibuster as a mechanism for measuring the intensity of a minority’s opposition to a majority position. The Constitution afﬁrms the power of each house of Congress to “determine the rules of its proceedings,” so any Senate procedures are compatible with the Constitution’s text. But the practices made possible by the post-1970 rules have contributed to institutional disequilibrium, destabilizing the Constitution’s design by inciting a dangerous expansion of presidential power. Hence Georgetown Law professor Randy Barnett and the Weekly Standard’s Jay Cost urge forbidding ﬁlibusters of appropriations bills:
“Democrats have discovered that if they block individual appropriations bills, the entire operation of government will inevitably be rolled into an omnibus appropriations bill, and the majority must either accept it in toto or face a partial shutdown of the government. This maneuver has largely eliminated Congress’s ability to discipline the executive via line-item spending cuts.”
Certainly the ﬁlibuster ﬁts a non-majoritarian institution in which 585,501 Wyomingites have as much representation as do 39,250,017 Californians. Besides, ﬁlibusters delay but do not defeat political processes: Can anyone name anything that a majority of Americans have desired, strongly and protractedly, that has been denied to them because of a ﬁlibuster?