Almost eight years ago, I made the case for the Senate filibuster when the partisan balance was reversed. Today the justification for the filibuster is stronger than ever, because the Republican majority is in a dangerous situation: internally divided but facing strong external pressures to conform to the party position. While I earlier explained that Senate Republicans can limit filibustering by simple majority vote, I do not expect them to do so this Congress.
The general argument goes like this: Filibusters help members of the majority party when they are pressured to support proposals that they privately believe are bad policy or risky politics. That is, there are members of the majority party who privately believe their party’s proposals are politically dangerous or terrible policy, but they are afraid to publicly defy their party leadership. In a simple-majority legislature, these conflicted members would have to make difficult choices between their private views or personal interest and the position of their party, backed by a populist president or powerful interest groups. In a supermajority legislature, on the other hand, conflicted legislators can publicly support their party’s position while privately applauding the obstruction of the minority party.
Specifically, the Republican agenda for 2017 is a political minefield: 1) repealing the Affordable Care Act with no comprehensive plan to replace it; 2) appropriating US tax dollars to build a wall along the border with Mexico; and 3) “tax reform,” which apparently means tax cuts for corporations and dead rich people (a.k.a. reducing the estate tax), with no discussion of offsetting spending cuts or loophole closings.
There are already a few GOP senators expressing concerns about the Trump administration and the GOP agenda: John McCain (AZ), Lindsey Graham (SC), and Marco Rubio (FL). This caucus could soon grow to include senators up for reelection in 2018 like Arizona’s Jeff Flake and Nevada’s Dean Heller, or blue- and purple-state senators like Maine’s Susan Collins and Ohio’s Rob Portman.
These senators face risks if they make their concerns public or vote against GOP initiatives:
- A primary challenger, especially someone more loyal to Trump
- Presidential criticism: the next senator Trump cyberbullies on Twitter will be neither the first nor the last
- Criticism and loss of donations from media, industries, and interest groups affiliated with the GOP
Instead of suffering these slings and arrows, senators can get out of their dilemma by affirming the current rules of the Senate so that Democrats can take responsibility for blocking a problematic Republican agenda. There are probably more than enough Republicans who are conflicted about the Republican agenda or committed to the Senate as an institution to stave off calls from President Trump or House conservatives to abolish the filibuster. Senate Majority Leader Mitch McConnell (R-KY) has been clear about his disinterest in limiting obstruction during the 115th Congress, and he would probably struggle to form a majority for filibuster reform if he tried.
So for the next 23 months, I expect to see a series of struggles to get the Republican agenda through the Senate, with Democrats blocking a GOP agenda with the tacit support of a few Republicans.