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Now that Senate Republicans have done away with the 60-vote threshold (a.k.a. the filibuster) for the Supreme Court, the obvious question is whether they will also abandon the 60-vote threshold for legislation.
My hunch is they won’t. Senate Republicans are not unified enough, and there are enough mavericks within the party who would cede considerable individual power if they gave up the filibuster.
However, much depends on the fights that come to the Senate floor.
The best way to work through this question is to evaluate the reasons the filibuster has lasted as long as it has.
It’s tradition
Tradition! This is perhaps the most obvious reason why individual senators have been loath to remove the filibuster. They see it as part of the tradition of the Senate, “the world’s greatest deliberative body.” If the Senate gets rid of the filibuster, what’s left to distinguish it from the House?
Tradition is a strong argument, but it’s losing its moral force. Norms and traditions are breaking down everywhere in Washington. The Senate might have once functioned as a truly deliberative body, driven by norms of collegiality. But that is more and more a distant memory. A growing number of senators have never experienced it.
In short, the case for tradition is weak and getting weaker.
It forces bipartisanship
Another longstanding argument for the filibuster is that it forces bipartisanship. Passing important legislation should require working out a deal with the minority party. And because it’s very rare for one party to have more than 60 votes at a time, the threat of the filibuster pushes the Senate toward bipartisanship.
However, this requires: 1) that some members of the minority party are willing to work with the majority party; and 2) that the majority party’s leaders are willing to make some compromises with the minority party in order to pass significant legislation.
The problem here is that neither of these conditions is true anymore.
Perhaps there was a time when the looming threat of the filibuster was a spur to compromise (or maybe senators just worked together because they had policy goals in common and incentives pushing them to compromise). But now the filibuster is just a recipe for inaction and gridlock.
In short, the filibuster no longer pushes the Senate toward bipartisanship. So we’re 0 for 2 now on reasons to keep the filibuster.
The majority understands it could be the minority next Congress
Another reason the majority party might want to hold on to the legislative filibuster is that it recognizes it could be in the minority after the next election, and wants to preserve its future power to block legislation it doesn’t like.
This is one reason Republicans should probably value the filibuster more than Democrats do. Republicans, as the party of limited government, probably have more to gain policy-wise by being able to stop new government programs from being created than by having the freedom to legislate with a simple majority. After all, once created, government programs rarely go away.
However, here’s where it gets interesting. Let’s assume Democrats would vote to end the legislative filibuster if they get back into the majority in the future (which seems totally reasonable). If so, Republicans would be smart to preemptively get rid of the filibuster while they still have the ability to use it to pass major legislation.
Moreover, Republicans might also believe there is legislation they could pass now on issues such as voter ID laws, public unions, and campaign finance that could actually improve their chances of remaining in the majority. If so, they should definitely get rid of the filibuster.
So we’re now 0 for 3 on reasons to keep the filibuster.
The filibuster shields the majority from tough votes
Another value of the filibuster is that with a 60-vote threshold, Mitch McConnell has a ready excuse for not bringing controversial, potentially extreme legislation to the floor — he doesn’t have the necessary votes.
This could help him protect members who don’t want to take controversial votes. Without that threshold, Republican are under much more pressure from their own base to bring potentially controversial legislation.
The filibuster could also help McConnell keep certain bills that would divide Republicans internally from coming to the floor. Witness, for example, what happened to the health care bill in the House.
So, at last, a potential point for keeping the filibuster.
The filibuster empowers individual members
The final reason to keep the filibuster is that it empowers individual members. If Republicans remove the legislative filibuster, Ted Cruz has less power. Mike Lee has less power. Susan Collins has less power. Lisa Murkowski has less power. Ben Sasse has less power. And so on.
Are 51 of 52 Republican senators willing to permanently reduce their individual power? Or more specifically: Is there a policy outcome that 51 of 52 senators feel so passionately about achieving that they are willing to trade in their own power for it? (Or, if you think VP Mike Pence would step in to cast the tie-breaking vote here, downgrade that to 50 of 52 Republicans).
This would have to be an issue on which the Republican caucus was almost entirely unified, and an issue on which Democrats were willing to use to the filibuster.
I can think of one set of issues that would do this: policies that could decide the balance of power for future elections. This includes things like voter ID laws, union organizing rules, and campaign finance regulations. These are also issues where McConnell could be at his most persuasive to fellow Republicans.
So let’s call this a one tie. The open question here is how much maverick senators value their individual power in the face of high-stakes policy battles.
The bottom line
The conventional arguments in favor of the filibuster are losing their force. Tradition means less now than it ever did. And when both parties are so divided, even the threat of the filibuster isn’t enough to spur bipartisan compromise, if it ever was.
The expectation that the majority might one day be in the minority, and want to keep the filibuster, also seems less compelling now that the filibuster is gone for Supreme Court nominees. There’s little reason to expect Democrats to keep the legislative filibuster if they ever get into the majority. So Republicans may as well take it now, when they can use it.
But will they? It depends. Individual senators don’t want to give up their power. So they’d need a big policy goal to convince them to do just that. And they’d need to be united in their support for that goal. The major Trump administration agenda items, like health care, taxes, and infrastructure, don’t inspire the unity or moral force for getting rid of the legislative filibuster.
But what about policies that could impact the balance of partisan power: voter ID laws, union organizing rules, campaign finance? These are the types of things Republicans have pushed at the state level to cement their majorities. If Republicans remove the legislative filibuster, my hunch is that it will be over one of these issues.
However, if this happens, the politics around it will be absolutely insane. And who knows what the fallout could be.
