OPINION: The Filibuster Serves No Purpose In Today’s Divided Age

REUTERS/Jonathan Ernst

Font Size:

Editor’s note: The following op-ed was originally published in April of 2017; it has since been updated to make sense in today’s context. “Eight Democratic senators” has been changed to nine and Trump’s request for border-wall funding was added to replace details of Congress’ struggle to come to a bipartisan healthcare-funding agreement last year. 

In 1957, former South Carolina Democratic Sen. Strom Thurmond staged a 24-hour, 18-minute filibuster to protest the 1957 Civil Rights Act.

To prepare beforehand, he reportedly took steam baths to dehydrate his body so he wouldn’t have to leave the Senate chambers for the bathroom. And it’s a good thing, because Thurmond’s only real break came when he tapped out once to Arizona Republican Sen. Barry Goldwater. Should Thurmond’s bladder have given in, however, staffers were prepared with a bucket in the Senate cloakroom where the senator could relieve himself without having to technically remove his foot from the Senate floor.

The 1957 bill passed despite Thurmond’s protestations, but he had made his point. That was the point of the filibuster, after all, at least for most of American history — to make a point.

Since the very first Senate filibuster occurred in 1837 until very recently, filibusters seldom succeeded in actually stopping legislation supported by a majority of senators. They also weren’t easy, requiring teamwork, stamina, and even a little creativity to pull off.

All that changed, however, in 1975, when a Democratic-controlled Senate changed the filibuster rules to allow so-called “virtual filibusters” to take the place of old-fashioned loosen-your-tie, hold-it-in and talk-till-you-drop, reading from the phonebook if necessary-style spectacles of days gone by.

No, this ain’t your granddaddy’s filibuster, and yes, it’s the lazy way out. These days, all Senate Minority Leader Chuck Schumer has to do is “declare” a filibuster and a bill is essentially dead unless Republicans can muster the 60 votes required to invoke cloture.

And in the age of opposition-at-all-costs to everything Donald Trump does, good luck getting nine Democratic senators to sign onto a bill supported by Trump that would outlaw drowning puppies, much less anything else of note.

Which brings us to President Trump’s Friday morning suggestion that Senate Majority Leader Mitch McConnell “go nuclear” in order to pass funding for his proposed border wall. Republicans in the majority will howl and harumph at the suggestion. Indeed, Sens Lamar Alexander and Orrin Hatch already have, and McConnell has made it clear that not only is he against it, but he doesn’t have the votes.

In other words, Trump was 100-percent correct when he told Nancy Pelosi and Chuck Schumer that he had the votes in the House but lacked 60 votes in the Senate to overcome a filibuster. Which means, absent non-Congressionally-funded means to build the wall, the wall will never get built.

And in today’s divided age, nothing of note will ever get accomplished. That is, until Democrats take over the Senate again and almost certainly change the rules to suit their advantage.

Thankfully, Senate Majority Leader Mitch McConnell and Senate Republicans took a tremendous step in the right direction by invoking the so-called “nuclear option” on the confirmation of Justice Gorsuch — and later, Justice Kavanaugh — to the Supreme Court.

Referring to a John McCain’s “handwringing” over the possibility that the rule change represents the “tyranny of the majority,” Republican Virginia Rep. Morgan Griffith writes:

The real nuclear option was the paralysis of our democratic republic by the modern filibuster/cloture rule. The real tyranny is that, when voting on a bill, the minority can obstruct the combined will of a majority in the House, a majority in the Senate, and the president. Nowhere in the Constitution do you find the filibuster. The modern filibuster/cloture rule is not a part of the constitutional framework the framers put forward, but a perversion of it.

Griffith argues that the “nuclear option” Republicans invoked in the case of Gorsuch didn’t go far enough and should be expanded to include all legislation, thus allowing all bills to be approved by a simple majority. As he explains:

This is in line with government of, by and for the people. If majorities of the House and the Senate, with the president’s approval, sign off on policies that do not work or are unjust, the people are able to pass judgment at the next election. Eliminating the modern filibuster/cloture rule empowers the people and is in line with the principles of our democratic republic.

In other words, elections should have consequences. How else are we to find out what really works?

Griffith and seven other representatives have put actions behind their words by sponsoring House Resolution 431 in September 2015, a bill which would urge the Senate to abandon the modern filibuster rule in favor of the historical one. Sadly, the bill seems to have stalled in the House Rules committee.

Yes, the failure of Trump and the GOP majority to fund and build a border wall is frustrating to Americans who want to see our country protected, but the real tragedy is that they are fighting a fight that’s impossible to win. In truth, something is inherently wrong with a system that allows a few obstructionists to block the will of the majority in both Houses of Congress as well as the President of the United States.

Because as divided and contentious as the country is, with roughly half supporting each side, asking either party to get 60 senators to support anything of note is an almost impossible task.

Which means nothing of note will ever get done, by either party. That may be good for Senate “traditionalists,” but it’s surely not good for America.

Scott Morefield is a reporter at The Daily Caller.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.