Democrats Can Blame Themselves if Trump Wins His War on the Filibuster

For partisans of limited government, this would be terrible news.


Since assuming office, President Donald Trump has responded to nearly every Congressional obstacle in his path by calling for the "nuclear option." And by this he doesn't

Trump Playboy
Lane Hickenbottom Reuters via Newscom

mean nuking Iran or North Korea—although, who knows, John Bolton might have that in the cards as well—but getting rid of the Senate filibuster so that he can ramrod his agenda through Congress.

But Trump is not unique in wanting the filibuster gone. Regardless of whether the evil party or the stupid party is in power, the majority party rails against this tactic only to change its tune when it's out. So if Trump gets his way now, it's because Democrats did yeoman's work ploughing the intellectual ground for him during the Obama years.

The twitter-happy Trump initially called for the nuclear option last year to overcome Democratic "obstructionism" and confirm Neil Gorsuch to the Supreme Court. And Republicans, who control the Senate with a narrow majority, happily obliged.

This sounds awful except that Democrats got this wrecking ball rolling when they muscled through a rule change in 2013, ending the 60-vote threshold for the confirmation of lower level judges and cabinet appointees during Obama's term because Republicans, they claimed, were illicitly holding up appointments to extract favors (which, truth be told, they were).

Senate Majority leader Harry Reid (D-Nev.), who had been an ardent supporter of the filibuster during the Bush years and went so far as to say that ending it would be the "end of the United States Senate," scrapped it without any qualms whatsoever when he got his hands on the levers of power. "Yes, we changed the rules," he unabashedly declared, "because now we have a D.C. court that functions…and we have a functioning National Labor Relations Board."

But clearly the ability of the executive and judicial branches to function effectively was not on Reid's mind when he, along with his fellow Democrats, blocked George W. Bush's judicial nominees in 2003, including most notoriously Miguel Estrada for the U.S. Court of Appeals*, the only judicial filibuster since 1968 (when Democrats and Republicans on a bipartisan basis resisted Pres. Lyndon Johnson's effort to elevate the ethically challenged Abe Fortas to Chief Justice).

But now Trump wants to finish the job by ending the legislative filibuster as well. He hectored Republicans to go nuclear (read Cato's Robert Levy's excellent primer on how that would work here) when the spending bill stalled in the Senate in January, leading to a partial government shutdown. Senate Majority leader Mitch McConnell refused to play along then so, this week, Trump was back to browbeating him, demanding on twitter that Republicans invoke the nuclear option to pass the sputtering border security legislation to prevent immigrants from "stealing our country."

In that quest, his biggest allies might be Ezra Klein and Nobel laureate Paul Krugman, both ardent liberals who were enthusiastically for the filibuster during the Bush years (accusing Republicans who wanted to end it then of abusing their power and engaging in a "power grab") before becoming vehemently against it during the Obama years.

Klein, who started kvetching against the filibuster when it forced Democrats to engage in inelegant procedural calisthenics to pass ObamaCare, went so far as to argue that the filibuster wasn't just a bad thing, but actually unconstitutional because it meant that laws would need supermajorities to pass—something the Founders allegedly explicitly didn't want. He railed that a filibuster allowed a united minority to thwart the majority party, even if voters had given the latter control of all three branches of government. It was one thing for the minority to have such a potent weapon when it was inhabited by a healthy dose of moderates who wanted concessions to simply pull legislation in a centrist direction, preventing majoritarian overreach. It was quite another when, in polarized times, it used the tactic to "block everything" and grind governance to a halt.

This is essentially the argument that Trump is now peddling—albeit mostly in 280 characters and sixth grade English. He has railed that such rules allowing a minority to hold majority legislation hostage are "archaic" (which, come to think of it, is more like 10th grade English) and "very bad for the country," and, "for the good of the nation, things are going to have to be different."

I have previously argued that there is nothing sacred about the filibuster, or any procedural rule for that matter. Such rules are not ends in themselves. Klein's claim that the filibuster is "unconstitutional" might be laughable, but getting rid of it as Trump wants now wouldn't be unconstitutional.

However, it most definitely would contradict the spirit of the Constitution, the chief purpose of which is to check the tyranny of the majority.

Indeed, the filibuster is especially important for the partisans of limited government. If they could get Gary Johnson in the White House and gain control of Congress, then, admittedly, it would seriously undermine their plan to eliminate much of the Pentagon, rescind the Patriot Act, abolish ICE along with the Education, Energy, and Commerce departments (not to mention the DEA); scale back the welfare state, and otherwise limit the size and scope of government. But given that the odds of that happening are lower than me marrying Prince Harry, while the odds of the two parties passing more bad laws constraining individual liberty are higher than the sun setting this evening, the filibuster is a useful tool to put a minimal break on bipartisan assaults on individual liberty.

Be that as it may, Trump is not likely to get his wish to eliminate it just yet. He wants to do away with the filibuster because he doesn't care for his party or Congress. He's in business for himself and wants to amass as much power as possible to ramrod his agenda through on short order. And it galls him that he can't get his way even when Republicans control both the legislative branches.

He doesn't care that without the filibuster, the Republican Party would be rendered impotent when it loses its majority. But Senate Majority leader Mitch McConnell does, which is why he is resolutely resisting Trump's demand thus far.

However, if Republicans retain control of Congress at the end of this year, all bets might be off. The temptation to do away with procedural rules that stand in the way of a complete hold on power for two years might then be too great to resist, especially with Trump hammering them day and night.

Should that happen, Democrats can look in the mirror and slap themselves hard.

*Correction: The aricle originally stated that Estrada was nominated to the Supreme Court. He was nominated to the U.S. Court of Appeals. The error is regreted.