The Volokh Conspiracy

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"Fix the filibuster but don't destroy it": My new Weekly Standard article


Jay Cost and my new Weekly Standard piece, Fix the Filibuster, But don't destroy it is now online. In it, Jay and I both defend the filibuster from its Progressive critics, but also diagnose how it is contributing to the inability of Congress to defend against unwarranted executive power, and some other problems. We contend that, if not reformed, the entire filibuster is likely to be repealed, which we think is a bad thing. We contend that reforming the filibuster today is the best way to preserve its protection of the rights of the minority tomorrow. Here are a few excerpts but here is much more on each point in our piece:

On why the filibuster is good:

Liberals complain that the Framers never intended the filibuster, which was created by a parliamentary oversight in 1806. This objection is quaint, given that the left otherwise has no regard for original intent. Whatever its origins, however, the filibuster reinforces the constitutional principle that the minority should have a stake in government. Indeed, the main objection to the filibuster-that it thwarts majority rule-is nonsensical. Like the United Nations General Assembly, where China and Liechtenstein each get one vote, the Senate is an inherently nonmajoritarian institution. The filibuster amplifies this essential feature of the Senate. The states are distinct entities that hold a stake in government and cannot properly be coerced by a popular majority. The Senate empowers half the states, regardless of population, to stop legislation favored by the majoritarian House. The Senate filibuster empowers two-fifths of the states to do the same. . . .

It is facile to assume that legislators instinctively pursue the public interest while in office. Writing in 1787, Madison noted that legislative appointments are sought for the sake of ambition and personal interest as well as the public good. "Unhappily," he concluded, "the two first are proved by experience to be most prevalent." Indeed, the history of our Congress is the story of a legislature that regularly sacrifices both individual liberties and the general welfare for the personal interests or ambitions of legislators, the special interests of factions, or both at the same time. It is foolhardy indeed to assume that a simple majority of the House and Senate represents the public interest. Today, campaign contributions, promises of a future career as a lobbyist, and the general Beltway culture combine to pervert the relationship between legislators and their constituents.

Furthermore, although the filibuster seems especially frustrating in this age of polarization, that may make it more valuable than ever. Combine the sweeping ideological ambitions of two opposing sides with the small electoral divide that separates them, and it is not hard to appreciate the value of the filibuster. A narrow and fleeting majority should not be able to enact its ideological agenda just because a passing wave of public discontent swept it into office. By granting additional powers to the minority, the filibuster mitigates this danger. Indeed, its utility was never so clear as with Obamacare. However flawed that bill was, imagine how much worse it would have been if the Democrats had not needed to get 60 votes to pass it through the Senate. Single payer anyone?

On why the filibuster needs reform"

To protect the rights of the minority in government, we must aggressively police the use of the governmental mechanisms that protect those rights in order to ensure they are not exercised in a counterproductive manner.

This is why reform of the filibuster is of such consequence right now. While the filibuster can be theoretically defended along the lines of the Connecticut Compromise, in practice it has become a shabby mechanism for stopping government. As a result, this one procedural rule is threatening the foundations of our constitutional system. By keeping Congress from accomplishing the necessary, day-to-day business of legislating, the filibuster has indirectly empowered the president to acquire legislative power by extralegal means. Obama has justified every one of his power grabs with the same taunt: Congress can't act, so I must. The president's conclusion is errant, but his premise is, unfortunately, spot on. Congress has responded not by using its own substantial institutional resources, but by calling meekly on the courts to rescue it.

This is a worrisome development. In Federalist 51, Madison argued, "Ambition must be made to counteract ambition." To do that, Madison noted, the -Constitution gives each branch a will independent of the others and the means to protect itself against the encroachments of the others. As presently formulated, the filibuster has deprived the legislative branch of its constitutional means to prevent the encroachments of the executive branch, which has, in turn, sapped the legislature's will to resist.

There is a danger, moreover, that frustration will induce members of Congress to overcorrect in the direction of majoritarianism. Liberal Democrats were calling for the elimination of the filibuster in 2009, and now we hear similar calls from conservative Republicans. If the filibuster is not reformed in a way that strikes a balance between minority rights and the national interest, it might be done away with altogether. This would be most unfortunate, as the filibuster reinforces the purpose of the Senate, a purpose that constitutional conservatives support. Hence our insistence on the filibuster's reform.

Our three reforms are:


Ending the filibuster for appropriations would restore Congress's ability to use the power of the purse to oppose presidential overreach, enabling it to withhold funds for executive actions of which Congress disapproves. It is rare for one party to hold 60 seats-a filibuster-proof majority-in the Senate. When the minority is of the same party as the president, it can use the filibuster to prevent the majority from disciplining the president through the spending power. In recent years, Senate 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, as the recent debate over the public funding of Planned Parenthood has shown.


we propose ending the filibuster for judicial confirmations-and we would consider doing so for confirmation of all presidential nominees that the Senate has a constitutional duty to accept or reject. As we have mentioned, Harry Reid already led Senate Democrats to end the filibuster for lower court judges. At minimum, we would extend the Reid Rule to Supreme Court confirmations. . . .

Although it has been challenging for scholars to identify precisely the history of filibusters, most agree that the filibuster of judicial nominees is of recent vintage. It has led presidents to nominate persons without a track record demonstrating their judicial philosophy, even when their own party controls the Senate, for fear of the minority's effective veto over judges. No matter who is president, this is bad for the judicial branch, whose members should be chosen for the courage of their constitutional convictions.


Our third proposal is more novel, but it is meant to restore a semblance of constitutional sensibility to this age of unlimited government: We suggest ending filibusters to block the repeal of a law.

The Founders wished to make laws difficult to enact without broad support and sustained interest from the public. Of this, we approve. Once a law is enacted, however, these very same structural hurdles create a ratchet preventing it from being repealed. This was not a problem when Congress respected the limits imposed upon it by the Constitution's enumeration of powers. But since the New Deal, those strictures have been tossed aside, and, unsurprisingly, the federal code has become jammed with so many rules and regulations that average citizens can break the law without even knowing it.

If Congress, flouting the letter and spirit of enumerated powers, insists upon plenary authority to legislate, we should make it as easy as possible for it to fix its inevitable mistakes. It is hard enough to repeal a law by a simple majority vote of each house and the approval of the president. Requiring a supermajority of the Senate makes the task even harder. For the very reason our republican Constitution makes adopting legislation difficult-preventing the enactment of bad laws lacking broad and sustained support-repealing bad legislation, to which majorities of both houses object, should be made easier than it is with the filibuster rule in effect.

There is more to our case than these teaser excerpts provide. If this is of interest to you, I suggest you click here to read the whole thing.