Both Trump and Harris called for ‘filibuster reform,’ but it would be a huge mistake
Both Trump and Harris called for ‘filibuster reform,’ but it would be a huge mistake
By Senator Gordon H. Smith and Martin B. Gold | Monday, October 7, 2024
Vice President Kamala Harris made waves last month when she endorsed creating a “carve-out” from the filibuster to codify Roe v. Wade nationwide. The vice president’s comments follow calls by other Democrats, including Senate Majority Leader Chuck Schumer (D-N.Y.), to create a filibuster carve-out for voting rights legislation.
Former President Donald Trump has also endorsed curtailing the legislative filibuster. Back in 2018, he told Senate Republicans to get rid of the filibuster while they had the majority, predicting Senate Democrats would try to do so next time they got control.
Trump was proved right in 2021, after Democrats won the White House and both houses of Congress. Senate Democrats launched an effort to create an “exception” to filibuster so they could pass the same voting rights bill Schumer and his allies are pushing today. They were stymied by Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.), the two lone Senate Democrats who refused to go along. Notably, Sinema and Manchin are both retiring at the end of this Congress.
With both parties’ presidential nominees on record supporting narrowing or eliminating the legislative filibuster entirely, it’s a strong bet that whatever the outcome of November’s election, there will be significant pressure next year to change the filibuster.
It would be a mistake.
Many voters think of the filibuster as a tactic for obstruction, a way for a committed minority to stymie the will of the majority. Although that may be true in some circumstances, when understood properly the filibuster is actually a tool for compromise.
As a practical matter, the filibuster requires 60 votes in the Senate to pass most major pieces of legislation. Except in those rare instances when one party captures a supermajority of seats, that means the party in control must work with the other side to get things done. That in turn has the salutary effect of moderating positions and forcing consideration of opposing views. The fact that a bill can’t get 60 votes doesn’t mean it’s dead forever. It means it needs to change if it’s going to have a hope of ultimately passing.
Both sides understand this. Drafting and negotiation take place in the shadow of the 60-vote threshold. Senators know that some bills are never going anywhere and are intended purely for “messaging.” But other bills — the ones whose goal is ultimately to become law — are drafted with an eye toward obtaining at least some votes from the other side.
History bears this out. Both parties have used filibusters, or the threat of filibusters, to win concessions from the Senate majority and shape legislation on its way to ultimately becoming law.
In 2015, for example, when Senate Democrats were in the minority, they used a filibuster threat to obtain additional amendment votes on the Every Student Succeeds Act, the most significant federal education reform in a generation. The availability of the filibuster didn’t stop the bill. Rather, it forced compromises that increased the breadth of support and ultimately improved the final product. This example illustrates one very important use of the legislative filibuster that rarely gets much attention. It gives the minority the ability to force amendment votes even on bills that are likely to pass.
Another example was the 2020 COVID relief package, known as the CARES Act. Once again, Senate Democrats in the minority used the filibuster to force the Senate Republican majority to include some of their priorities in the final bill, which ultimately passed 96-0.
Senate Republicans, too, have used the filibuster to shape, not stop, legislation. The 2021 bipartisan infrastructure package provides an example. After the bill failed to surmount the 60-vote threshold the first time around, Democrats and Republicans entered into intense negotiations, with a revised version ultimately obtaining 18 Republican votes to move forward. The bill later passed easily.
Indeed, senators of both parties have conducted filibusters on the broadest range of social and economic issues, questions of foreign policy and national security, and energy and environmental policy, among numerous others.
That’s a healthy thing. Bare majorities should not be deciding questions of fundamental change for our country. The goal should be to pass broadly popular legislation, not the most extreme policy that can get through with the narrowest possible vote. The filibuster requires senators to pursue the former approach, at least if they want their bills to become law.
It’s unfortunate that both parties’ presidential nominees have cast aside this lesson. Admittedly, the temptation to do so is understandable. The last thing you want to do when you’re in charge is negotiate with an obstreperous minority, and both candidates are looking to a future where they hope to be the one calling the shots.
But a true long-term view recognizes that political conditions change and no majority is permanent. A rule that hinders you today protects you tomorrow. The filibuster forces compromise, and in a nation as large and diverse as ours, that’s a good thing.
Calls to create filibuster “carve-outs” are no less wrongheaded than calls to eliminate the filibuster entirely. Creating “exceptions” for certain issue areas inevitably will lead to the complete elimination of the filibuster. Some senators will demand exceptions for gun legislation, others for border security. There is simply no principled line to draw between issues that deserve filibuster exceptions and those that don’t. No majority that wants to pass a bill will be restrained once the precedent for creating carve-outs is set.
The filibuster is an essential, compromise-forcing Senate institution that has helped check the extremes on both sides for decades. Getting rid of it would be a profound mistake. Even if our two major party presidential nominees don’t recognize that, voters should.
So when you cast your vote for Senate this November, pay attention to what the candidates have said about the filibuster. Pay attention to whether they would preserve — or gut — this key part of our political system. And choose candidates who recognize the value of promoting compromise, including through retaining the legislative filibuster.
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Gordon Smith served in the U.S. Senate from 1997 to 2009. Martin B. Gold is the author of “Senate Procedure and Practice.” Both are board members of the Orrin G. Hatch Foundation.
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