The word “filibuster” has always conjured up in my mind negative connotations.
Before the Civil Rights Bill of 1964 and the Voting Rights Act of 1965, the filibuster was the prime instrument used to block any legislation that would grant African-Americans the full rights of citizenship that all white Americans enjoyed.
Southern Senators, all Democrats at the time, knew the filibuster worked. Their side would win and their opponents would lose when they used it. They attempted to elevate its image by saying that it was a worthy Senate tradition. The Senate was to act as the cooling agent to the more rash and impulsive House of Representatives.
To stop a filibuster or end debate, the Senate had to invoke cloture, quite a high numerical hurdle. It now requires 60 votes; before that, the vote requirement was even higher: 66.
As you might’ve guessed, all this talk about the filibuster has to do with President Trump’s nomination of Neil Gorsuch to the Supreme Court.
{mosads}Democrats in the Senate, led by Minority Leader Chuck Schumer (N.Y.), have said they will use this weapon to deny Gorsuch’s confirmation. There are 52 Republicans and 48 Democrats in the Senate, so Schumer and leadership hope no more than seven Democrats vote with all 52 Republicans to confirm Gorsuch.
Majority Leader Mitch McConnell (R-Ky.) has threatened to break with Senate tradition and do away with the 60-vote threshold, requiring only a simple majority to invoke cloture.
That has been termed the “nuclear option.”
In light of that, there is a great deal of talk and newspaper editorializing (by The Washington Post, for example) proposing a “deal.”
It would be the following: Democrats would agree to have a straight up-or-down vote on Gorsuch and there would be no filibuster. By agreeing to this proposal, Democrats would be allowed to use the filibuster for the next nominee to the Supreme Court if a vacancy occurs during Trump’s presidency.
The rationale for this deal is that since Gorsuch is just replacing the late conservative Justice Antonin Scalia, the ideological balance of the court will not be fundamentally changed with Gorsuch’s addition. Justice Anthony Kennedy continues to be the swing vote in what is now viewed as a 4-4 split between liberals and conservatives.
Since the nominee for the next vacancy will determine the ideological future of the court, the “deal” allows the higher standard of the filibuster for such a momentous vote.
But we should reject this deal and the rationale behind it. Each party’s hands are not clean in this entire process.
In 2013, then-Majority Leader Harry Reid (D-Nev.) did away with the filibuster because he wanted to fill federal judge vacancies (especially circuit court openings) that were being stalled by the Republican minority.
The move was brazenly opportunistic and totally partisan. Quite simply, Reid wanted the federal judiciary to be populated by individuals who side with the Democratic Party’s principles and policies. He exempted the Supreme Court from his decision solely because it gave his move a patina of legitimacy.
But let’s stop playing games. Let’s call the filibuster what it is: A tactical political weapon that each party will use when it finds it to be convenient and necessary.
Let’s just do away with it in its entirety. The result will be that decisions on all personnel and all legislation would be done by simple majority vote.
(Just to be clear: I am not talking about eliminating all supermajority requirements, such as those needed to approve constitutional amendments, ratify treaties or override presidential vetos. Just the filibuster.)
Dare I say it? The Senate should emulate the House, where 218 is the magic number. Correspondingly, 51 should be the magic number in the Senate.
In the Senate, the filibuster actually increases partisanship and polarization, since Democrats feel the pressure to vote in total unison, as so do Republicans. That does not allow for negotiation or compromise.
There are independent-minded senators in each party who are perfectly suited to break with their party and vote their convictions and conscience. In the GOP, John McCain (Ariz.), Lindsey Graham (S.C.), Susan Collins (Maine), Lisa Murkowski (Alaska) and Jeff Flake (Ariz.) come to mind. For the Democrats, Joe Manchin (W.Va.), Heidi Heitkamp (N.D.), Jon Tester (Mont.) and Angus King of Maine (an actual independent, but one who caucuses with Democrats).
The world’s greatest deliberative body, as the Senate is often called, should inspire its members to be free agents, not to be bound by party discipline. This recent controversy should be the last time we as a nation have to endure this duplicitous game.
It should not always be about winning or evening the score (as the Democrats are now trying to do, since Republicans refused to hold hearings on President Obama’s last nominee to the Supreme Court).
Without the filibuster, senators in each party would be required to work the other side of the aisle — to find new friends; to convert foes and make them allies. Every bill and every appointment should be voted on the merits. That’s how a functioning democracy is supposed to work.
Doing away with the filibuster forever in all situations would produce a big win for democracy — something we surely need.
Mark Plotkin is a contributor to the BBC on American politics and a columnist for The Georgetowner. Previously, he was the political analyst for WAMU-FM, Washington’s NPR affiliate, where he co-hosted the “D.C. Politics Hour With Mark Plotkin.” He later became the political analyst for WTOP-FM, Washington’s all-news radio station, where he hosted “The Politics Hour With Mark Plotkin.” He is a winner of the Edward R. Murrow Award for excellence in writing.
The views of contributors are their own and not the views of The Hill.