Where I Was Wrong Part I: The Filibuster

Over at National Review, I wrote that we NeverTrump conservatives should start the reconciliation process with Trump supporters by explaining where we went wrong in the years leading up to the Trump campaign. I should start with myself. I wasn’t writing about politics when I held these opinions, but I voted and spoke, and so I bear my share of responsibility as a citizen. There is too much for just one column, but today, I will start with the filibuster.

The filibuster arises from a Senate rule that requires sixty out of one hundred Senators to move for cloture—a procedure for ending debate and holding a vote—on most legislation and nominations. (The Democrats recently changed the rule so that votes can be forced on simple majorities for all nominations except to the Supreme Court.) This rule basically gives forty-one senators a veto over the other fifty-nine.

I agreed with the standard conservative defense of the filibuster. I believed that, like separation of powers and bicameralism, the filibuster prevented narrow, transient majorities from passing extreme legislation.

There might have been a time when this made sense—back when the parties were more internally ideologically diverse and there were norms limiting the use of the filibuster. The filibuster meant that major laws changed either when there was a cross-party consensus or when one party had won a large, durable advantage on an issue.

That isn’t our situation today. The parties are polarized and internally coherent (on most issues that come before Congress), and the voters are narrowly divided between them. The result is usually paralysis. Both parties make big promises, but nothing happens.

That’s a good thing, right? We conservatives like to talk about how the public’s money is never safer than when the legislature is on vacation and all that.

Wrong. Under present circumstances, the paralysis is punctuated by short periods of frenzied lawmaking, as one party wins a large temporary majority based on unusual circumstances. The Democrats derived political benefit from the financial crisis occurring at the tail-end of a Republican administration. If Ohio had voted differently in 2004, it would have been a Democratic president presiding over an economic apocalypse. Such random events are now the only times when our politics moves.

When a party wins large congressional majorities, the filibuster rule creates perverse incentives for our polarized, ideological parties. The incentive is for the victorious party to pass as much of its agenda—especially the most unpopular parts of its agenda—by any means necessary, as quickly as possible, because it knows it has its majorities more by luck than by popular approval. Then, when it loses its majorities, it only has to hold on to forty-one Senate seats in order to prevent its work from being undone.

The result is that the politics of the filibuster looks like the politics of Obamacare—rushed, incompetent, corrupt, and ideologically intoxicated, in the service of an unpopular bill.

The filibuster also has a corrupting effect on the party that never gets to sixty Senate votes. It allows members of that party to posture for major policy changes while knowing the other party will block them. Hillary Clinton was recently revealed to have said that she believed politicians need a private and a public face. The filibuster likewise allows members of Congress to be two-faced. They can make big promises to activist groups and never confront the tradeoffs that come from major legal changes—and then the politicians can go back to those same activist groups and point to the minority party as the reason nothing happened. Well, if only you worked extra hard and gave us bigger donations, then we could have a real majority.

This turns politics into a joke. It is difficult enough for one party to get control of the Senate, the House of Representatives, and the presidency simultaneously. Politicians are telling voters that they must wait on the next once-in-a-generation event before implementing their promised agenda of repealing Obamacare or restricting late-term abortion, or passing improved internal immigration enforcement. You just better hope that the other party is in office when that event happens—because otherwise, you are going to have to wait for another generation, or two, or whatever.

The paralysis of Congress mean that more and more issues are taken out of the electoral realm and settled by the administrative state and the courts. Anyone who has followed the IRS scandal and understands the climate of opinion among elite lawyers should recognize why this is a very bad thing.

But maybe the most corrosive thing is the feeling we have that some of the people who are nominally on our side like it this way. They get to posture, collect votes and donations, stay in office, and let unelected elements of the federal government impose their preferred policies.

It is this combination of cynicism and lack of accountability that makes Donald Trump’s “only I can fix it” strongman politics look appealing. Ending the filibuster would make it a little easier for voters to hold politicians accountable. There would be more times when politicians would have to put up or show themselves to be the enemies of their own voters. It would mean that liberals would get more of what they want when they win elections—but that is as it should be, and, in any case, the current system is set up to give liberals much of what they want even if they lose.

It is time to change that. It is time to get rid of an outdated rule that was made for a different party system. If we don’t give voters a more accountable Congress, don’t be surprised if they want an unaccountable president to take down a corrupt and unresponsive system. Consider Trump a warning.

Pete Spiliakos is a columnist for First Things. His previous articles can be found here.

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