The filibuster has always been about power not principle. Senate power ebbs and flows between the parties: in the majority one election cycle, in the minority the next. No wonder Republican and Democratic Senators love the filibuster. They know it is only a matter of time before the filibuster becomes their best friend, their only pathway to power. The filibuster smooths out the rough edges as the parties seesaw back and forth, in and out of power.
There has never been any principle behind the filibuster. It was, after all, established by accident. But in its more than 200 years of existence, the filibuster has become a sort of Dickensian character: the ghost of Senates past, present, and future haunting Senate Scrooges and persuading them to act better.
Last week, the Senate’s lead Scrooge, Majority Leader Mitch McConnell (R-Ky.) decided to ignore the lesson. He blew up the filibuster for Supreme Court Justices.
It was a moment of rare, high drama on the Senate floor. Normally, Senators wander in and out of the chamber. They cast their votes by catching the clerk’s eye and gesturing thumbs up or down. But last week, the Senators stayed put, often sitting at their desks and solemnly casting their votes aloud and mostly in order as the clerk called the roll, as the Senate went through the motions of eliminating the filibuster for Neil Gorsuch’s confirmation as a Supreme Court Justice. The Senators were bearing witness to more than the death of a procedural device. Those 100 men and women were there to watch the formal close to an ideal fostered by the filibuster: trust and mutual commitment to bipartisanship in appointing the judiciary. It’s all about power now.
That spirit of joint responsibility has been fraying for a long, long time. There was an awful lot of “you started it; no, you started it” finger pointing on the Senate floor last week.
The few people who tried to broker peace were left flustered. In the days before the nuclear option was deployed, a small group of Senators led by Sen. Susan Collins (R-Maine) and Sen. Chris Coons (D-Del.) attempted to preserve the filibuster and tried to hammer out a new way for dealing with Supreme Court nominations. The effort fizzled. As Coons said on the Senate floor: “Among many, this effort to forge consensus was met with hopelessness or even hostility.” The effort failed, Coons said, “because we do not trust each other anymore.” And he fretted: “If we cannot trust each other anymore, then are there any big problems facing this country which we can address and solve?”
But honestly, who needs trust when you have power? Supreme Court power – that’s real power. It lasts a generation, only needs five people to exercise it, and reaches into every nook and cranny of society.
Starting with the Merrick Garland blockade and culminating in the Gorsuch confirmation, Republicans have completed their staggering one-year power play over the Supreme Court at no electoral cost. And with a highly favorable Senate election map in 2018, it is unlikely that they will ever pay one.
Now the question is whether they will move on to eliminate the filibuster for legislation.
It’s all a matter of timescale. The play for the Supreme Court made a lot of sense, considering that the power accumulated would last for decades and would be so profound. On the legislative side, though, the time scale is shorter and the personal stakes are higher. Every Senator wants to have some shot at relevance as his or her party cycles out of power. And few Senators want the institution to start acting like the House, randomly passing majoritarian or kook impulse bills—50 Obamacare repeal laws, anyone?
For now, the legislative filibuster seems safe. McConnell has sworn: “There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one.” Perhaps that ghost of Senates future is haunting him. But once his power is imperiled by a legislative filibuster and as the base turns on him and his fellow Senators for failing to deliver on their promises, his thinking may change.
And McConnell is famous for altering his views when it suits him. Four days before Gorsuch was nominated, McConnell told The Hill, “It takes 67 votes to change the rules in the Senate.” He added, “No, we don’t have any current plans on the rules.” Not only did McConnell change the rules, he did it with 51 votes.
So there’s no telling at this point the ultimate fate of the legislative filibuster. Power and trust in our democracy are shifting under our feet. What the Gorsuch nuclear option taught us is that the filibuster constrained the majority, but only as long as the majority cared to be constrained. Or in other words, it constrained raw power plays for as long as the majority understood that in a democracy, where power waxes and wanes, a mutual commitment to good governance and to trust was critical.
(Image: Flickr.com/ Gage Skidmore)