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Save the Filibuster

By  |  November 16, 2016, 10:42am  |  @ewerickson

“[J]ust two weeks ago when all the polls showed Hillary Clinton was going to win, the Democrats in their confidence about taking back the Senate explicitly rejected the idea of scrapping the legislative filibuster.”
A great many Republicans are about to make a very foolish mistake. They want to scrap the filibuster in its entirety. They argue that the Democrats will do it anyway when they next get the opportunity, but they would actually be wrong on that and we have major recent history to prove all claims that the Democrats will abandon the filibuster are nonsense.

First, let’s break this down into the separate arguments. There are actually three filibusters.

The first filibuster was against executive appointments excluding Supreme Court justices. Harry Reid and the Democrats scrapped that filibuster.

The second filibuster is against Supreme Court appointments. That filibuster stands.

The third filibuster is against legislation. That filibuster stands.

If the GOP wishes to get payback, sure scrap the filibuster against Supreme Court nominations. Harry Reid established the precedent with ending the filibuster for lower court judges and other executive nominations.

But it would be foolish to scrap the filibuster against legislation. You will note that the Democrats controlled the United States Senate from January 3, 2007 – January 3, 2015. From January 20, 2009, until January 3, 2015, the Democrats controlled both the Senate and the White House.

The Republicans used the filibuster repeatedly during that time to block Barack Obama’s agenda. In fact, from January 20, 2009 until the Democrats lost both houses on Congress on January 3, 2011, the GOP used the filibuster repeatedly to block Barack Obama’s agenda. And since the Democrats took back control in 2007, Barack Obama noted in May of 2014 that “the fact [is] that since 2007, they have filibustered about 500 pieces of legislation.”

Notice that the Democrats in the Senate never, ever seriously contemplated killing off the filibuster for legislation. They never have. They’ve certainly blustered about it and the GOP gave them every single opportunity to do it. But they never did.

In fact, just two weeks ago when all the polls showed Hillary Clinton was going to win, the Democrats in their confidence about taking back the Senate explicitly rejected the idea of scrapping the legislative filibuster. Harry Reid signaled that they might end the filibuster on Supreme Court picks, but he and other Democrats were very clear that the legislative filibuster was not going away.

Just a few years ago, both sides agreed to a compromise reform that keeps a filibuster from happening before legislation even gets to the floor, but neither side has ever been willing to scrap it altogether. The GOP, it should be noted, went along with this because GOP leaders wanted to forestall conservative obstruction of bipartisan measures. They were still upset with both Rand Paul and Ted Cruz leading filibusters against budget busting legislation and NSA matters. But neither the Democrats nor the Republican at that time went so far as to scrap the whole filibuster.

Both sides forget that at some point the other will control the Senate and now both sides will, within a decade, see the other party control everything all at once. That is enough of a reminder for members of the Senate that they need the filibuster.

Republicans suddenly are the ones who want to scrap it and Democrats, after years of wanting to abandon it, suddenly are defending it. There is no intellectual honesty in the argument. What is intellectually honest is to note that the filibuster is constitutional as the constitution allows the Senate to set its own rules of procedure. Likewise, the filibuster has been used by both sides. Likewise, the Democrats had ample opportunity to scrap the legislative filibuster and they never did even when they controlled both houses of congress and the Presidency.

What is most important to note however is that the filibuster is often the last tool available for conservatives to stop the worst excesses of their own party. The filibuster is how men like Mike Lee, Ted Cruz, Ben Sasse, Rand Paul, etc. can force their own party to rein in spending and liberal legislation. If you gut the legislative filibuster, you are stopping conservatives from being able to fight for limited government.