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.

NEXT: Trump's Tribal Immigration Policies Hit a Wall of Facts

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  1. “Democrats Can Blame Themselves”


    1. History shows us that democrats have had practically no political power over anything ever.

      How could they possibly be responsible for anything?

      That’s the whole point!

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  2. Reason’s oh so principled, deeply held “libertarian” position on the filibuster: it’s freaking awesome when the republicans are in power, but it absolutely sucks and should be eliminated when the democrats are in power.

    1. It’s just Shikha.

      And I don’t even know what inspired her to write this article at this time. There’s never a slow news week with the prez. Why re-visit this issue?

      1. Over at Volokh Conspiracy, Prof. Adler was against the filibuster for judicial nominees (when he deigned to call it that — he denied de facto filibusters counted even when his conservative colleague there signed a letter against one such “filibuster”) but also how the Democrats ended it for executive nominees because it was too mean or something.

    2. Of course, the bit in bold shows just how wrong Chapman ended up being even while at the time the consideration was a bit different. You’re not wrong in the slant, though.

      This is Dalmia though, so I can’t be bothered to read her opinion. Even if she’s right, it’s by blind chance. I’d rather quote Chapman since it shows that at least two of the Reason authors are full of shit.

      From that article:

      The change adopted by the Senate has been dubbed the “nuclear option,” as though it were unimaginably destructive. But all it destroys is the capacity of the minority party to frustrate the operation of the legislative branch. And it applies only to executive and non-Supreme Court judicial nominations. The old rules still apply to other matters.

      Conservatives sometimes act as though democratic processes are something to dread. Uncontrolled, they can be scary. But under our Constitution, they are carefully regulated to prevent rash action.

      The framers, however, did not intend to let the minority prevail as a general rule. They did require a super-majority vote to approve treaties, override presidential vetoes and pass constitutional amendments. Had they wanted to require 60 votes to confirm judges, they knew how to do it.

      In most things, though, they chose to let the majority rule. It’s not a perfect system, but there are worse ones.

      1. Holy shit, that’s fucking retarded. Even for Chapman.

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

    I’m totally willing to help them with that.

    1. I understand your hostility.

      Having liberal-libertarian progress shoved down their throats, relentlessly for nearly a century, has understandably made conservatives cranky.

  4. I think Mitch understands there isn’t a real Republican majority in the Senate and the nuclear option would make it all the more apparent.

    1. And worse case scenario, a majority of Rs actually want to support something constructive, and there would be a risk it would pass rather than have a symbolic vote to wave around at election time.

  5. I’m not sure if it’s more sad or more scary that Trump’s bully pulpit consists mostly of calling people poopyheads on Twitter and yet there’s a lot of Congresscritters who seem to tremble in fear of having Trump call them a poopyhead on Twitter. I’d like to think that the nuclear option wouldn’t allow Trump to wield the sort of power that Obama did, that at least a few principled legislators would stand up for themselves and the prerogatives of the legislative branch, but I wouldn’t bet on it.

    1. All the filibuster does is allow Senators to hide their real positions. If you never have a vote, then no one has to go on record about a bill. It allows both parties to screw their supporters and blame the other party. Hey Jerry, I really wanted to repeal Obamacare but those damn Democrats just wouldn’t come to a vote.

      Talk is cheap. I can always claim I wanted to do something that I knew wasn’t going to happen. And that is what the filibuster allows Senators to do. Bullshit to that. Bring these things to a vote and let these bastards go on record yeah or nay and answer to the voters for the results.

    2. It appears the CongressCritters are all too aware of the illegal actions taken under Obama and are now terrified that Trump will do the same things.

  6. “Democrats can blame themselves”

    …for a whole lot of things.

    But they’ll blame Trump, the Kochs, the NRA, etc. instead.

    1. Oh, and white women.

      1. Oh, and Google tells me that “ubi est albus mulieribus” is Latin for “where the white women at?”

        Don’t blame me, blame Google. Or the Romans.

        1. That’s terrible. “Ubi sunt mulieres albae?” is better…

  7. We have a completely out of control government. We have largely arrived at that situation because even when we are lucky enough to win the odd election and get a Congress that is interested in rolling back that government in some small way, the people who want it that big just filibuster and ensure that doesn’t happen. The ratchet only goes one way. If we want small government, we are going to have to pass laws that make it so. And doing that is virtually impossible so long as those who support big government can filibuster.

    Would ending the filibuster make it easier to pass new government programs? Sure. But considering the size of our government, just exactly how many government programs has the filibuster saved us from? None that I can see. Meanwhile, the filibuster prevented the Congress from repealing Obamacare, which would have been the biggest win for small government in 50 years. It would have been the first time in history a giant progressive program was actually repealled.

    Ending the filibuster would not be a bad thing for fans of small government and would likely be a very good thing. The fact that Dalmia says the opposite makes me wonder if she really wants a small government at all.

    1. What’s this “we?” Conservatives? Republicans (including their faux libertarian wing)? The party of transvaginal ultrasounds, militarized police, gay-bashing, torture, the drug war, bloated military budgets, a “your papers, please” government, criminalized abortion, dogma-based education, and premptive invasion?

      That “small government” party?

      1. The we isn’t you dumb ass. So go troll some other thread. Tony is on this thread. We are all full up on angry retard. Peddle your angry stupidity somewhere else.

        1. John, paragon of serenity.

      2. I don’t know what. “transvaginal” means, but I think I like it!

        1. It sounds a great deal like sliding down a banister sideways

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

    The chief purpose of the Constitution was to increase the power of the federal government. Antifederalists opposed it largely for that very purpose.

    It included some checks on the tyranny of the majority but it somewhat goes against the argument since it includes a limited number of things where a supermajority is required.

    I’ll be upfront — I supported some use of the filibuster in the Bush years regarding judicial nominees but one learns over time. Net, I question how useful that was, and if Democrats want to delay, there were other ways to do it. Plus, a major problem is how far the filibuster is taken. It has some value, but it was trivialized.

    Blaming Democrats here is silly. Anyway, there are many bottlenecks in our system even without a filibuster. Merely a sort of “by rule” approach can cause a lot of delays if there is enough will.

    1. Both parties have used the filibuster to avoid responsibility for their positions. When Reid got rid of the filibuster for judicial nominations, a lot of red state Democrats did not like the results. The filibuster allowed them to avoid voting for far left nominees and having to answer for doing so. They could avoid being held responsible for voting for some nut because it never came to a vote and at the same time tell their base “I wanted more judges but the damned Republicans wouldn’t do it”. When the filibuster ended, they had to go on record and they didn’t like it very much.

      The filibuster has become an extra constitutional requirement for a 60 vote supermajority to get anything through the Senate. Understand, that before 1974, you could filibuster but doing so brought the Senate to a halt. If you wanted to do it and demand more debate, you could but you had to debate. You couldn’t just table the bill and go on about other business. In 74, they changed that rule and made it so a bill couldn’t get to the floor without 60 votes but the Senate continued to consider other business. That was the mistake. They need to go back to the old rule. If the minority party wants more debate, fine. But getting that debate means everything else stops.

      1. As it is, it is just a tool of obstruction and avoidance of accountability. That is bad for the country. Elections should mean something. When the public puts one party or the other into power, that party should be able to accomplish what it was elected to do. Otherwise, the government becomes totally unresponsive to the voters.

  9. Miguel Estrada was not nominated for the position of Supreme Court justice, but rather as a judge on the DC court of appeals. Estrada had never been a judge or an academic, and had no paper trail for the Democrats to consider. He was a “pal” of Ann Coulter, not much of a recommendation to some. Some Democrats “privately” feared that, as a Latino, he would make a ideal Supreme Court nominee for right wingers, highly conservative but, as a Latino, difficult for the Democrats to oppose. But it would be nice if Shikha would get her facts straight before she starts in with the moralizing. Just sayin’.

  10. I have to wonder if the procedural filibuster is a good thing for limited government or not. I know the whole argument about how it slows things down, but it also results in gigantic “compromise” bills in which everyone has something to hate…then, of course, it’s difficult to reverse if it’s consequences are found to be unsavory.

    Imagine if it were gone and simple majority ruled (individual Senators could still filibuster with long-winded lectures as was apparently intended by the founding fathers). Certainly, we’d have more volatility in policy. For example, Republicans would vote in a tax cut (arguably a larger one than either the Trump tax cut or the Bush tax cuts) when they were in power. Democrats would reverse it and probably add new taxes/regulations when they are in power. Both would still have incentive to increase spending, but that’s ALWAYS the result now and maybe it would change the dynamic enough for the voting public to see the consequences of the parties’ philosophies.

    1. Saying that the filibuster is good for small government assumes that small government is the status quo and big government is the change. That hasn’t been true going on 90 years. The forces of small government are the agents of change. And the filibuster is nothing but a weapon to be used by the supporters of the status quo big government to thwart that change.

      1. Why do I feel like I don’t even have to bother searching Reasons’s archives to know that you loved the filibuster when Obama was president?

        1. No I didn’t. I had the same opinion I do now. And the filibuster didn’t keep Obama from doing anything. They just broke the rules and passed the Senate version of Obamacare to avoid the 60 vote requirement. The disaster that was the Obama administration is exhibit A of why the filibuster doesn’t help small government advocates.

          Name a single thing Obama wanted that was stopped by the filibuster?

          1. I had the same opinion I do now.

            Citation needed.

            Name a single thing Obama wanted that was stopped by the filibuster?

            Pretty much literally everything he wanted, or at least versions of them.

            1. No Tony, he got everything he wanted until the Democrats lost the House in 2010. That is when he stopped getting things. And that has nothing to do with the filibuster. The filibuster didn’t stop Obama from doing anything. The fact that no Democrat other than Obama could get elected stopped him.

              I know you are not bright, but you are usually a little smarter than this.

              1. So you’re saying that when Democrats didn’t have a filibuster-proof majority in the Senate, Mitch McConnell never blocked anything Obama wanted with the filibuster?

                1. No Tony, he didn’t. The Democrats got the porkulus, Obamacare and all of Obama’s appointments. If they didn’t get something, I don’t know what it was. If you can remember something they didn’t, tell me what it was.

                  1. I don’t even know what you’re arguing. Politifact figures that there were 68 individual nominees blocked in the senate prior to Obama (as in all of history), and 79 under Obama, and that was only in 2013. How do you remember history so incorrectly?

                    1. That was all after 2010 after the Democrats lost the House and no longer had a large majority in the Senate. You just don’t hear things you don’t like. Stop wasting my time. Go away.

                    2. You asked me to name a single thing Obama didn’t get because of the filibuster. I named 79.

                      Stop being a doofus or I’m going to find a quote of yours from pre-2016 writing love poetry to the filibuster. I am certain I could.

  11. Republicans are never going to refrain from being bastards because of the precedent or example Democrats set. That type of argument is ludicrous. It not only robs Republicans of agency, it assumes they have a soul.

    1. But Bush!

    2. Thought you didn’t belive in souls anyway…

  12. Sixth grade is pretty generous.

  13. Or, Democrats could look ahead, to the next election not controlled by bigotry and backwardness (with an electorate trending against the Republican pillars of rural, religious, white, backward, and intolerant voters on a daily basis), and eagerly await the progress Democrats could effect were the structural amplification of rural voices in our system to be diminished by removal of the filibuster.

    1. Bigotry such as calling non-coastal state residents “Bitter Clingers” or including people that held their nose and supported Trump “a basket of deplorables”?

      Backward = calling people with penises male?

      White, as in higher numbers of black and latino voters than McCain or Romney got?

      Intolerant, as in not accepting the delusions of the mentally ill as fact?

      1. The Trump campaign, a rainbow of tolerance!

        1. Millions of blacks and Hispanics happily voted for Trump.

          1. I don’t think anyone happily voted for him except people named Bubba.

  14. Keep the filibuster, but you have to stand there and keep talking, refusing to yield the floor. None of this “placing a hold” nonsense. If it’s important enough to filibuster, strap on your Stadium Buddy and get to work.

  15. Democratic leaders were actually announcing back in October of 2016, when they still thought they were going to win it all, their intention to abolish the filibuster. They only shut up about it after they lost the election.

    Thus Republicans know that the filibuster is history the moment they themselves are in a position to need it.

    Really, the only reason they keep it around is as an excuse for failing to do things they ran on, but never meant to do.

    1. That was also when they insisted that people need to shut up after the election and accept the results that would come in early November. To do anything less would be unpatriotic, damaging to the national character, and undemocratic.

      Then Trump won and those admonishments went out the window.

    2. That is about the size of it Brett. The Republicans haven’t gotten rid of the filibuster because it allows them to avoid the responsibility of voting on things and lets them blame the Democrats for not doing anything.

      1. Yup. As far as the Congressional GOP is concerned, the ideal result in the 2018 elections is :

        1. to lose the House (but not too badly)
        2. to retain the Senate
        3. to do well in state races (for the next round of redistricting)

        The combination of 1 and 2 means

        (a) no legislation can be passed, and it’s not the GOP’s fault
        (b) so there’s no meaningful activity the Senate can perform except confirming judges

        Since the Congressional GOP wants nothing from Trump except judges, that result would be perfect.
        I don’t know what Nate Silver and his number crunchers would say, but I’d guess the odds on 1 and 2 happening together must be around 50-50 ?

  16. 1. The GOP has a 51-49 majority in the Senate, and their 51 includes Collins, McCain, Flake and Corker. So the GOP doesn’t have a real majority for anything except confirming judges. So there’s no point in changing the filibuster rules on legislation.

    2. Harry Reid knew this perfectly well too. You change the rules that you need to change now. No point changing rules you can’t get any current benefit from. So he left SCOTUS and legislation alone. No SCOTUS vacancy and no House majority. But there were non SCOTUS vacancies to fill, so he filled them.

    3. The old game died not because the Dems changed the filibuster rule for non SCOTUS nominations, but because they broke the rule for changing rules. Once you’ve done that, the other side knows that the only thing that stops the majority changing the rules is current convenience.

    4. Consequently it’s silly to say that the GOP should keep the filibuster to protect themselves when the Dems get back in again. When the Dems get back in again they’ll change whatever rules need changing to suit their current needs. So obviously if they win back the Senate majority in this year’s elections they’re not going to eliminate the legslative filibuster. They’ll wait till there’s a President who won’t veto their stuff.

    1. Number three in spades Lee. Once the Democrats changed the rules for something, the game was up because neither side could trust the other to abide by the rules from that point on.

  17. I’ve got a solution. We split the baby and go back to the old school filibuster rules. Which means if the old windbags think that it’s important to hold up a vote on legislation, they have to get off their fucking asses and bloviate about it instead of skulking about in the darkness like rats.

  18. “However, if Republicans retain control of Congress at the end of this year, all bets might be off.”

    The likelihood of the GOP retaining the House is near zero.

    1. According to the betting markets it’s about 33%, not zero.

  19. The Filibuster is already dead. The Republicans are complete dopes for retaining it for themselves when everybody knows the Dems will dispense of it the second they have power and a need to do it. Trump is absolutely right on this issue.

    If you care about limited government, the move would not be to hope the Republicans “retain” the already dead Filibuster but rather that the formally abolish it. Then you can push for a Constitutional Amendment to bring it back. And now you have a real Filibuster that actually stand the test of time. This is the only way to save the Filibuster.

  20. What goes around comes around. This warning was made loud and clear when Reid did his deed.

  21. Gary Johnson? Is that still the best the “Libertarian” party has to offer?

    You had your chance, I think, with Austin – but you all puff-puff-passed on him in favor of someone who flirts with Bernie far too much. It’s not only deeply disappointing, but it’s pathetic that people keep thinking he has a chance. Sorry, you blew it, and you’re not going to get another chance for a long, long time now – if ever.

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  23. One of the things I like about the “nuclear option” is that it takes us back to the Constitution’s rules for passing laws — a simple majority vote needed.

  24. The end of the filibuster would definitely be a setback for proponents of smaller, less intrusive government.

    Assuming that the filibuter’s gone, then whenever a party gets a majority in both houses and holds the White House, it can pass whatever legislation it likes. Unfortunately, it’s a lot easier to create special tax breaks and entitlements than it is to eliminate them?witness the failure of every attempt to get rid of the ACA, or to eliminate the wool-and-mohair subsidy. This means that when the D’s are in power, they’ll establish all manner of new entitlement programs and expand all manner of old ones; when the R’s are back in power, the beneficiaries of these new and expanded programs will fight like rabid bats to ensure that they’re retained.

    The need for a supermajority acts as a check on the entitlement ratchet. It can’t stop it, but it can at least slow it down.

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