President Trump has a surprisingly sensible idea: get rid of the legislative filibuster.
If Republicans are going to pass great future legislation in the Senate, they must immediately go to a 51 vote majority, not senseless 60...— Donald J. Trump (@realDonaldTrump) July 28, 2017
...Even though parts of healthcare could pass at 51, some really good things need 60. So many great future bills & budgets need 60 votes....— Donald J. Trump (@realDonaldTrump) July 28, 2017
This isn’t the first time Trump has made this argument; he tweeted against the filibuster in repeatedly in May too. "The filibuster concept is not a good concept to start off with," Trump told Fox News in an interview on April 28th. "You're really forced into doing things that you would normally not do except for these archaic rules."
During that news cycle, Senate Majority Leader Mitch McConnell pushed back, saying that filibuster abolition would “fundamentally change the way the Senate has worked for a very long time. We're not going to do that.” But Trump is right. These are archaic rules, they add an unnecessary additional veto point to the lawmaking process (which is already way more difficult in the US than it is in most other developed countries), and they are a major reason why Trump’s presidency has so few legislative accomplishments.
It’s time for Trump and McConnell to end the silliness, and kill the legislative filibuster once and for all.
The filibuster is frustrating Trump’s governing agenda
It might seem dubious to blame the filibuster for Trump’s rough start. Health care and tax reform, the two legislative priorities he named in his tweet, are going through budget reconciliation, which only requires 51 votes in the Senate. That would seem to imply that the filibuster isn’t keeping things back, and that the real culprits are the Senate’s slow pace on health care. Tax reform, meanwhile, is starting at the House level, with Ways and Means Chair Kevin Brady taking lead, and also hasn’t progressed far. How could the slow movement of these bills be the filibuster’s fault?
Vox's Andrew Prokop has a great explainer on why it's more complicated than that. Basically, the whole health care clusterfuck is a consequence of a strategy Republicans arrived at months ago, built around the fact that they wanted to use budget reconciliation — the process that evades the filibuster — for both Obamacare repeal and tax reform. You can only pass one reconciliation bill per budget resolution, so the plan was to quickly pass a fiscal year 2017 budget resolution to use for the health bill, and as soon as the health debate was wrapped up pass a fiscal year 2018 budget resolution to use for taxes.
But the plan also meant they had to finish health care before moving on to taxes. "In this scenario, Obamacare repeal would have to move very quickly indeed," Prokop writes. "Republicans wanted to pass the new budget setting up tax reform for reconciliation by this spring — and once they did so, they believed Senate rules required that the health care reconciliation instructions from the previous budget resolution would expire."
That led to a mad rush to pass health care as quickly as possible, so as to move on to tax reform. And the rush made brokering a compromise on health care difficult, both due to increased time pressure and because any health care deal would have to conform to the Byrd rule, which could rule out a lot of policy changes like adding a surcharge for people who don’t stay continuously covered by health insurance.
The Senate rules also affected the process in another way. Republicans wanted to do health care first because it enabled them to repeal all of Obamacare’s taxes, and pay for it by repealing the bill’s spending too. That would be kosher under reconciliation, because it doesn’t increase the deficit in the long run. But it would also result in the US getting less revenue going forward. So they could then do “revenue-neutral” tax reform that, along with the health care bill, amounted to a tax cut relative to the law under President Obama. And because the tax law would be revenue-neutral against the new, lower-tax baseline created by the health bill, it too could be passed through reconciliation.
All of this — all of this — could be avoided if you just eliminated the filibuster. Then Congress could get to work on health care and tax reform simultaneously, at whatever pace made sense. Which bill you took up first wouldn’t matter at all, rules-wise. Neither bill would have to balance in the long run: Republicans could pass an absolute tax cut if they wanted, without bothering to cut the Obamacare spending or find other pay-fors like border adjustment.
The only constraint would be their actual concern over the deficit, not arbitrary Senate rules. House Republicans wouldn’t have to craft a health care deal that would work for Senate reconciliation. They could just craft a health care deal that they thought could get a majority in each house, the way that bicameral systems are supposed to work.
Look at this another way: There have been a number of victories in the Senate for Donald Trump already. He narrowly got Betsy DeVos confirmed as his secretary of education. He appointed Neil Gorsuch to the Supreme Court. He overturned a bevy of Obama-era rules on the environment, internet privacy, and reproductive rights.
But every single one of these wins was possible because they weren’t filibusterable. Democrats had eliminated the filibuster for executive branch appointees, Republicans followed suit for the Supreme Court, and the Congressional Review Act allows the Senate and House to repeal recently decided federal rules without facing a filibuster.
If the filibuster were gone, passing any legislation would be as straightforward as passing those rule changes was.
Don’t fear the nuclear option
Repealing the legislative filibuster shouldn’t be a radical measure. Democrats and then Republicans have already totally eliminated filibuster for nominees to judicial or executive positions, including for the Supreme Court. With that precedent, going the final distance and eliminating the filibuster for bills should be a logical culmination.
But Senate Republicans are reticent anyway. After going nuclear to confirm Gorsuch, Mitch McConnell told reporters, "There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one." Asked if that meant he was committing to not changing the legislative filibuster as long as he's majority leader, McConnell replied, "Correct."
Senate Finance Committee Chair Orrin Hatch was even more vehement:
HATCH pushes back on Trump tweet to change filibuster, tells me that doing so would send the country "straight to socialism."— Manu Raju (@mkraju) May 2, 2017
This is a common argument, that repealing the filibuster would help liberals more than conservatives. It was the rationale my colleague Matthew Yglesias offered for abolishing the filibuster all the way back in 2005. "The liberal difficulty is what it always has been — getting new stuff passed into law," Yglesias wrote. "It's no coincidence that the United States is also an outlier in terms of having a relatively underdeveloped welfare state. The many sticking points in the legislative process were deliberately designed by the Founders to bias the political system in favor of conservatism."
More recently, New York magazine’s Eric Levitz argued that "the filibuster provides conservatives with a structural advantage" because "any institution that makes it more challenging to enact new welfare programs in the first place is good for the right."
I mostly agree with this, but Trump should think about what the actual mechanism here is. The argument is that the filibuster helps liberals because liberals have traditionally been the political force in US pushing for real change. But Trump’s whole pitch, his entire raison d’être during the Republican primary, was that he’s a different kind of Republican, one who’s willing to drain the swamp, turn Washington on its head, and replace the whole corrupt system. That’s change, all right — and it’s change that will be frustrated if the filibuster is kept in place.
Moreover, Trump has long been animated by his insecurity about losing the popular vote, and as a consequence has often lashed out at the idea that a majority of Americans should decide policy. There’s actually evidence that the filibuster is a rule that can make the Senate more majoritarian in nature, particularly when Republicans are in the majority.
In Yale Law Journal, Benjamin Eidelson compiled empirical evidence showing that when Republicans were in the majority in the Senate from 2003 to 2007, filibustering minority Democrats typically represented a majority of the US population, because they came from populous states like California and New York. If Trump thinks these states have too much power, then he should encourage the Republican majority in the Senate to abolish the filibuster and prevent these “majoritarian filibuster” efforts.
Of course, Trump isn’t the person who gets to decide if the filibuster stays or goes. Mitch McConnell and his caucus do. And they might be preserving it for reasons that contradict Trump’s. Maybe they don’t want to run a midterm campaign in 2018 after having taken away people’s health care, or having passed a massive, unpaid-for tax cut for the rich. If that’s their motivation, then binding their hands by refusing to abolish the filibuster makes a lot of sense.
But if they actually want to get anything done — or want the body in which they serve to be halfway effective at passing legislation in the future — they should join Trump and work to finish off the filibuster entirely. They should liberate themselves from the constraints of the budget reconciliation process, and simply try to craft legislation that can get 50 votes.