OPINION:
The Senate filibuster should be placed on the Endangered Species List. It is indeed endangered, and when it goes, an important element of our governmental system will go with it. Gone will be the Senate’s role as the country’s most deliberative governmental entity, where consensus reigns and the passions of the moment are subdued by calm, measured consideration of all angles and facets of any issue. It also is where vital checks can be placed on any abuse of the minority by the majority.
Today’s threat to the filibuster is a byproduct of the divisive, nasty, highly partisan politics of our time. During the Obama administration, Senate Republicans used the filibuster promiscuously to thwart confirmation of presidential judicial appointments. Bad form. That led Senate Majority Leader Harry Reid to employ what became known colloquially as the “nuclear option’’ — changing Senate rules, via a simple majority vote, to end filibusters for all presidential appointees except Supreme Court picks. More bad form.
Now we have an apparent bad-form escalation, with Senate Majority Leader Chuck Schumer threatening a filibuster to thwart Senate consideration of President Trump’s Supreme Court pick, Neil Gorsuch. The question now reverberating through Washington is whether the Senate’s Republican leader, Kentucky Sen. Mitch McConnell, will employ the nuclear option to destroy the filibuster also for Supreme Court nominees.
Mr. McConnell doesn’t want to do it. He’s a traditionalist and institutionalist, disinclined to be the man who dealt another blow to this hallowed Senate institution, perhaps the blow that could lead to the filibuster’s ultimate extinction. The majority leader is getting a lot of pressure, though, to go nuclear if Mr. Schumer and his Democrats carry through on their threat. Wrote The Wall Street Journal the other day, “If Mr. Schumer insists on a filibuster, then Republicans have an obligation to respect their voters and confirm Judge Gorsuch anyway.’’
Perhaps The Journal is right. But saving the filibuster is a noble goal, and it can’t be saved without an understanding of how that senatorial institution has been twisted, squeezed and distorted into something that doesn’t protect democracy so much as undermine it.
A little history: The filibuster emerged in 1806 as a rule allowing a senator on the floor to hold the floor as long as he could, thus freezing action on a bill before the body. The first filibuster didn’t occur, though, for some 30 years, and for more than a century they were extremely rare — employed only when an energized minority felt an absolute necessity to protect vital political interests against the majority. Ultimately, that energized minority turned out to be mostly Southern segregationists bent on thwarting civil rights legislation.
Thus did the filibuster get a bad name — and become a leading target of liberals frustrated by their inability to extend full equal-protection rights to African-Americans. This anti-filibuster sentiment lingered even after passage of the landmark civil rights legislation of the 1960s, and in 1975, Minnesota’s Democratic Sen. Walter Mondale, a leading liberal of his day, initiated a dramatic Senate assault on the filibuster. His aim was to kill it.
He took a lot of abuse from Southern senators, most notably Louisiana’s wily and forceful Russell Long, who pummeled Mr. Mondale with an impassioned and eloquent peroration on the meaning and sanctity of the filibuster as a guarantee of minority rights and also as a spur to senatorial collegiality, as it required senators to work with one another in a spirit of cooperation and courtesy.
In the end, a compromise was struck. Instead of the two-thirds vote of senators present to break a filibuster (called cloture), it thereafter required only a three-fifths vote of all senators, irrespective of how many were on the floor. But that same year the Senate adopted a rule easing the way for the Senate to conduct other business while a filibuster was going on. Whereas previously any senator who wanted to filibuster had to stand up and make his case, foregoing nourishment and bathroom breaks, now he could just declare his intent to filibuster and go merrily on his way. Whereas before the filibusterer had to take responsibility for holding up the business of the Senate, now no procedural disruption attended his action. Without paying a price or busting the senatorial schedule, the filibusterer could quietly kill a bill if he could get 41 senators to go along.
The result is that the filibuster has become a routine part of senatorial procedure, whereas before it was used only rarely, when the stakes were immensely high and the political passions particularly intense.
And there’s the rub. The filibuster protection has been abused to such an extent that it has become easy for senators to chip away at it when normal senatorial responsibilities and routines seem threatened. Used with abandon to thwart Senate consideration of federal judgeship nominations, it now is unavailable in matters involving all presidential nominations except Supreme Court nominees. Now even Supreme Court nominations are being pulled into the vortex of partisan controversy, and so the filibuster is under threat there as well.
It wasn’t supposed to be this way. The filibuster was supposed to be used only when a Senate minority perceived a clear and present need to intervene to protect what were viewed as major national interests. The Senate needs some rules changes to protect the filibuster — and to protect members from today’s routine abuse of the filibuster.
• Robert W. Merry, longtime Washington, D.C., journalist and publishing executive, is editor of The American Conservative. His next book, due out from Simon & Schuster in September, is a biography of William McKinley.
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