End the filibuster arms race

David Harsanyi

After reading a CNN piece titled “Senate Dems, powerless to stop Trump nominees, regret ‘nuclear option’ power play,” I experienced some deeply satisfying schadenfreude.

Feel free to keep President Barack Obama, Sen. Harry Reid and those who implored Senate Democrats to blow up the filibuster a few years ago in your thoughts as President-elect Donald Trump names his Cabinet and judges. But be sure to remember how recklessness begets recklessness in Washington, D.C.

“I do regret that,” Sen. Chris Coons of Delaware, a Democrat who voted to weaken the filibuster three years ago, tells CNN. “I frankly think many of us will regret that in this Congress because it would have been a terrific speed bump, potential emergency brake, to have in our system to slow down nominees.”

It always was a terrific speed bump, senator. One of the reasons we value tradition, norms and process is that we don’t know what the future holds. But these Democrats don’t regret their vote for majoritarianism or power grabs. They regret that Trump will now be able to operate under the rules they set for themselves.

It’s worth remembering that Democrats didn’t use a parliamentary procedure to change the rules so that federal judicial nominees and executive-office appointments can move to confirmation votes with a simple majority for some grand ideological purpose. They did it for short-term political gains that no one will remember. Does any Democrat believe helping Obama name some left-wing populists to run the Consumer Financial Protection Bureau and the National Labor Relations Board was worth it?

Sen. Jeff Merkley, D-Ore., charged at the time that without the nuclear option Republicans were “going to disable” the executive branch. “It’s come into a realm where it’s just unacceptable because if the executive branch can’t function, then the nation can’t respond to the big challenges it faces,” he explained. He seemed to be under the impression that presidents make laws — or maybe just liberal presidents.

The liberal punditry hammered the filibuster back then the same way it’s hammering the Electoral College today. In 2010, Paul Krugman wrote a column in The New York Times claiming that the filibuster would destroy America.

He wrote: “We’ve always known that America’s reign as the world’s greatest nation would eventually end. But most of us imagined that our downfall, when it came, would be something grand and tragic. What we’re getting instead is less a tragedy than a deadly farce.”

The idea that Democrats hadn’t been able to function was a myth. Obama, supposedly powerless to face America’s “big challenges,” had already passed a nearly trillion-dollar stimulus, a restructuring of the entire health care system, and a tangled overhaul of financial regulation. The president also appointed two wholly liberal Supreme Court justices with no meaningful opposition.

The American people then said, “That’s enough.” For Merkley, Krugman, Coons, Reid and others, that wouldn’t do.

When Reid’s party was in the minority, he warned that weakening the Senate filibuster would “destroy the very checks and balances our Founding Fathers put in place to prevent absolute power by any one branch of government.” He was right. With his party’s attainment of a Senate majority, Reid’s reverence for the Founders rapidly faded, so much so that he used the nuclear option to eliminate the filibuster from some Senate debates.

As a practical matter, these changes will likely never be reversed. What kind of majority is going to restore the filibuster to its opponents? What kind of majority wouldn’t use the same process to roll back the previous Senate’s abuses? After all, the Chris Coons of the world will never be courageous enough to stand for process and stability over partisanship gain. In a Republican environment where winning itself is the ideology, it becomes even less likely.

Although each party detests the filibuster when it is in power, progressives hold an enduring contempt for it because they hold an enduring contempt for federalism in general. Even today, some liberals are trying to figure out ways to work Senate procedure to put Chief Judge Merrick Garland on the Supreme Court. As if Republicans wouldn’t then simply turn around and load the court themselves.

This kind of arms race sets dangerous precedents. It’d be nice if the nation realized it.