Trump’s Filibuster Tantrum Is An Attack on Democracy

The president seems to believe the Senate’s tradition of compromise must change “for the good of the nation.”

May 3, 2017

 

The President’s twitter account has reached its Robert’s Rules of Orders phase. Sad.

Having gone after the Fourth Estate and the Judiciary, Trump is now directing his twitter rants at the Senate. 

The President’s pivot to parliamentary procedure began last Friday during his 100-day press tour. Speaking to Fox News, Trump complained: "The filibuster concept is not a good concept to start off with.”

“You look at the rules of the Senate…There are archaic rules and maybe at some point we're going to have to take those rules on, because, for the good of the nation, things are going to have to be different,” he said. “You can't go through a process like this. It's not fair, It forces you to make bad decisions.” He then made the same point two days later on “Face the Nation.” And he was at it again Tuesday, somehow creating a linkage between a government shutdown and a change in Senate rules.

Given Trump’s short attention span, his remarks represent a sustained campaign to kill the filibuster. It is likely to be as successful as his efforts to date to repeal and replace (or whatever it is) Obamacare. For one thing, Senate Majority Leader Mitch McConnell (R-Kent.) is dead set against the idea. “That will not happen,” he said hours after Trump’s early-morning Tweet tantrum. As I have noted before, McConnell’s loyalty to the filibuster is not out of some dewy-eyed sentiment to Senate rules, but out of a cold political calculation that, in the long run, the filibuster serves the interests of Republicans more than Democrats.

And in case McConnell’s message wasn’t clear enough, Texas Sen. John Cronyn, the no. 2 in the GOP leadership, pledged to stop any movement to eliminate the filibuster. “The rules have saved us from a lot of really bad policy,” he remarked, before making a rather pointed reference to the president.. “We all are into short-term gratification, but it would be a mistake in the long term.”

And that’s just the GOP leadership. Last month, 61 Senators, including 28 Republicans, sent a letter to McConnell saying they would oppose “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust and extended debate.” 

But before going any further, let’s get a few things out of the way. The 48 Democratic senators are not, mathematically speaking, the “minority.” All told, they represent states with 66 percent of America’s population. Across all three Senate classes, i.e. all 100 Senators elected over three election cycles (2012, 2014, and 2016), Democratic candidates have received 12 million more votes. There are plenty of ways to cut this data, but one thing is clear: Senate Democrats represent the majority of Americans.

Let’s also dispose of the fiction that Trump’s anti-filibuster stance is about trying to do things for the “good of the nation.” No, the attack on the filibuster is about the President’s childish frustration in not getting everything he wants from a docile legislative branch. Those “bad decisions” he complains about—they’re the necessary compromises of lawmaking. Trump’s been in office for a little over 100 days. Apparently, that’s enough time for him to call it quits on the democratic process.

Yet, as Trump’s own election demonstrates, the improbable can happen. Trump’s base, which has been as frustrated as he is, got a rare taste of success when the Senate killed filibusters for Supreme Court nominees and paved the way for Neil Gorsuch.

But the problem is that putting Gorsuch on the Court (and perhaps another Supreme Court nominee) is insufficient to sustain the Trump presidency through four years of Democratic legislative and appropriations filibusters punctuated by Republican intra-party meltdowns.

As New York’s Eric Levitz points out:

The conservative base finds the concept of putting institutional norms above short-term partisan gain so distasteful it demanded Republicans hold the government hostage out of the quixotic hope that such a move would force Barack Obama to repeal his own signature achievement. If Donald Trump and Rush Limbaugh alerted the GOP base to the fact that Senate Republicans have decided to make the Democratic Party more powerful, and the president’s agenda more difficult to pass — out of reverence for a constitutionally dubious custom of their elite club — the chamber’s institutionalists would quickly find themselves in an untenable position. It is very hard to argue that Obamacare is a calamity and the tax code is a job-killing mess — but upholding the norms of the Senate must take precedence over fixing either of those problems.

Levitz has a point. It’s possible, but unlikely, legions of Trump supporters will rise up and demand the Senate change its ways. Levitz’s phrasing highlights some of the problems with Trump’s argument. The filibuster is not a “norm” or a “custom.” It’s part of the Senate’s rules, and as such, an integral part of our democracy, no matter how “archaic” a former real estate developer may find them.

Nor, as a practical matter, is the filibuster “constitutionally dubious.” Yes, it’s true the filibuster is not in the Constitution, and the Founders supported simple majority rule in legislatures. And yes, the filibuster came about because of a change in the Senate’s rules and the first filibuster wasn’t even mounted until 1841. But as Adam Winkler, a professor of constitutional law at UCLA notes, the Supreme Court “has tended to view congressional rules as being up to the discretion of Congress and has often expressed its reluctance to second-guess the elected branch for reasons of separation of powers.” 

Trump is undoubtedly right about one thing: we could get more rational policy decisions and more ideologically pure laws without pesky things like bipartisanship or consensus or even elections. These days, the filibuster is the peskiest thing of all. But make no mistake: the attack on the filibuster is not about assailing a rule or a strangely named, archaic procedure. It’s an assault on democracy.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Flickr.com/GageSkidmore)