Senate Democrats’ effort to abolish the legislative filibuster appears doomed to fail in this term, now that Sens.
of West Virginia and Kyrsten Sinema of Arizona have made clear their strong opposition. That’s a shame. Conservatives benefit from the filibuster when the Democrats hold the majority, but they should support its repeal. It makes it harder to get laws enacted, but it also makes them harder to repeal. With all the noxious laws on the books, Republicans should be the party of repeal.
Getting legislation passed or repealed in America is like waiting for three cherries to line up in a slot machine. Absent veto-proof congressional supermajorities, one needs the concurrence of the House, Senate and president. The possibility of deadlock is magnified by the filibuster, which since 1975 has permitted 41 senators to block a vote on most legislation. Since 1979, no party has controlled all three branches and enjoyed a filibuster-proof Senate majority, save for a nine-month period in 2009-10.
That’s not a bad thing if the heightened barriers mean that good bills will survive and bad bills won’t. That was Hamilton’s argument for the separation of powers in Federalist 73. But measures that prevent bad laws from being enacted also impede their repeal. So the choice is between screening before a law is enacted in a presidential regime and the reversibility that is possible in a parliamentary one, in which a majority government can do what it likes, so that a single cherry from the one-armed bandit is enough.
Conservatives tend to think screening is more important. If fewer laws are passed, that’s fine with them. Progressives lament the brake that the separation of powers places on new legislation. They look back fondly to
Franklin D. Roosevelt’s
first hundred days in 1933, when the executive drafted bills, which Congress rubber-stamped without debate.
Now, however, conservatives ought to value reversibility. Imagine a new Congress and a new president elected in 2024 to reverse decades of wasteful interest-group bargains. As
said in 2013, when the Democrats did away with the filibuster for nominations: “Just you wait!”
Ideology aside, reversibility should trump screening because it is easier to identify bad laws with the benefit of hindsight. The conservatives who think they can get it right from the start fall prey to what
called the planner’s “fatal conceit.”
Bad laws, with bad consequences, are enacted everywhere. In dictatorships, bad laws are often bad from the start. In democratic regimes, they’re typically recognized only after the fact. When a parliament reverses a prior parliament, it will know better what works and what doesn’t. Easier passed, easier mended.
The filibuster has also served to weaken Congress and empower presidents. Power abhors a vacuum, and if Congress can’t act, presidents have discovered that they have a pen. And so we’ve moved to a constitution of strong presidentialism, which carries with it the risk of dictatorship. Around the world, countries with strong presidents are significantly less free than parliamentary ones.
A further problem with the filibuster is the manner in which it absolves political parties from responsibility for the failure to enact useful laws. With both sides blaming the other, politicians are encouraged to behave irresponsibly. In “The American Commonwealth” (1888),
notes that “if a bad Act is passed or a good one rejected, the blame falls primarily upon the ministry in power.” One can’t duck problems so easily, and that serves to bring politicians to the political center. There would also be less of a scramble to get politically extreme laws passed if lawmakers know they will likely be reversed by a subsequent Congress.
We can’t undo the separation of powers, but the filibuster should go. What it’s given us is a one-way ratchet in which bad ideas are adopted and then turned into the laws of the Medes and the Persians.
Mr. Buckley teaches at Scalia Law School. His most recent book is “Curiosity—and Its Twelve Rules for Life.”
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Appeared in the June 28, 2021, print edition.