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Abolish the Filibuster? Maybe We Should

Should freedom advocates support the U.S. Senate’s “filibuster” rule? The traditional answer has been “yes.” But we might want to take another look.

The Senate’s filibuster system allows individual Senators to block legislative action by making long speeches (i.e., “filibuster”) on the floor. When several Senators take turns speaking, they can block legislative action indefinitely.

The Senate adopted the filibuster system in 1806. The system derives from optional Senate rule, not from the Constitution. In 1917 the Senate adopted Rule 22, which allowed a two-thirds majority to force an end to a filibuster (“cloture”). In 1975, the Senate reduced the required cloture margin to 60 percent.

Advocates of limited government tend to favor super-majority requirements because—in theory anyway—(1) they stall government action and (2) they assure that when government does act, its measures benefit a very broad segment of the public.

In recent years, however, some researchers have questioned the benefits of super-majorities in legislative chambers with significantly more than 50 members. Apparently a rule that works well in a smaller chamber may prove counterproductive in a larger one.

Whether or not this generalization is correct, experience does show that the filibuster has not restrained the growth of the federal government. Instead it has helped create a one-way ratchet whereby the federal government sometimes expands, sometimes remains constant, but never shrinks.

One reason appears to be a large, highly organized and permanent pro-government element in national politics. This element includes the media, the education establishment, the bureaucracy, and certain powerful lobbying groups such as the AARP. These groups amplify the effect of liberal electoral victories while diluting the effect of conservative victories. (Think of how they have molded public perceptions of so-called “government shutdowns”). As a result, in the U.S. Senate liberal majorities sometimes become super-majorities, while conservative majorities almost never do.

Another reason the filibuster has acted as a one-way ratchet may be the different levels of respect for rules displayed by liberals and conservatives. When conservatives are in majority, they usually respect the prerogative of the liberal minority to filibuster against proposals to reduce the size of government. Liberals tend to grant less respect to conservative filibusters.

As a result, “filibuster politics” usually ends well for the Left. Here are some historical examples:

* In 1917, the Democratic Senate adopted Rule 22 at the request of President Woodrow Wilson to allow cloture for the first time—by a two thirds majority.

* In 1965, Senate Democrats enjoyed a 67-32 majority, which enabled them to override any filibuster possibility and enact Medicare and Medicaid—thereby rendering the federal government the dominant player in American health care.

* In 1975 a liberal Senate reduced the cloture margin to 60. Note that when Senate conservatives recovered their majority, they did not reverse this action.

* In 2007, a liberal Senate used a technique called “reconciliation” to override a filibuster threat and pass the College Affordability and Accountability Act. That measure assured greater federal control of higher education.

* In 2010, a liberal Senate did the same to adopt Obamacare.

* In Nov. 2013 a liberal Senate adopted the so-called “nuclear option” to abolish filibusters on judicial nominees. But they carefully excepted the Supreme Court from the change, so liberals still could filibuster against appointment of more originalist justices such as Clarence Thomas and Antonin Scalia. This change was not reversed when the Republicans took control of the Senate in 2015.

Note how the filibuster rule was swept aside when it stood athwart a liberal majority’s wish to expand government. I was able to find no instances in which a Senate majority lifted the filibuster to reduce the size of government.

In some countries, the size of government has been reduced significantly in recent years. Illustrations include Margaret Thatcher’s Britain and Roger Douglas’ New Zealand. However, the parliamentary majorities accomplishing this were never super-majorities. Had the filibuster rule been in effect in those countries, both would still be languishing in socialist stagnation.

Rob Natelson