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The Senate Filibuster: Tool of Mass Obstruction or Key to Deliberation?

Less than twenty percent of Americans approve of the way that Congress is handling its job, according to recent Gallup polls. President Trump is a self-proclaimed doer, someone who could fix the system, and his base expects some big, fundamental changes. And yet, in the nine months since Republicans took control of the Presidency, House, and Senate, President Trump has no major legislative victories to claim. Are American’s tired of a government that is inherently slow moving due to the separation of powers and rules such as the filibuster?

Last month, AEI resident scholar Gary Schmitt hosted a panel of specialists who debated the merit of the filibuster and whether or not its rules should be changed. The panelists set the stage by explaining the history, and current rules surrounding the filibuster. Under the current filibuster rules, a single senator can refuse to consent to voting and thereby continue the debate on any issue. The ability to stall a vote on an issue is called filibustering. To overcome the filibuster, 60 senators must hold a “cloture” vote to end debate on the topic and move to the final vote. This rule was intended to give senators the power to force debate on issues that they are passionate about and thereby force the Senate majority to work with the minority. As the filibuster is a rule created by the Senate to dictate order of business, the rules can be changed by a simple majority. President Trump is desperate for a legislative victory and wants the cloture vote to be changed to only require 51 senators, instead of the previous 60. Senate Majority leader Mitch McConnell is defying the President to preserve what he considers to be a fundamental part of the legislative process. This debate will determine whether our system will move a step away from the slow moving legislative process that demands compromise towards a more efficient one where the majority can more quickly achieve its policy goals.

Panelist James Wallner, who spent several years working in the House for a minority party member, strongly advocated against any filibuster reform. He argued strongly, citing Federalist 10 and the Constitution, that the Founders designed the Senate to be a slow moving body and that the filibuster protects the minority, and the nation, from a hot-tempered majority. He admitted that the filibuster is being used more frequently, and with the intent of opposing the other party instead of standing for policy positions, but argues that the benefits of the filibuster far outweigh the costs. Mr. Wallner’s defense of the filibuster was contested by Saikrishna Prakash, from the University Of Virginia School Of Law. Mr. Prakash argued that the defenses of the filibuster don’t stand up to scrutiny. He pointed out that debate can, and should, occur off of the Senate floor and that minority parties are already inherently protected by the separation of power within our government. Finally, panelist Peter Hanson struck a compromise between the two sides proposing that the filibuster has a place in the system, but that filibuster rules should be changed for certain categories of legislation like a budgetary crisis. Mr. Hanson claims that in situations such as debt ceiling debates, failing to act is an action in itself.

Mr. Prakash’s concluded by arguing that the Senate needs to do its job and pass legislation. Changing the filibuster rules would accomplish this goal and would force Democrats who want a seat at the table to rejoin the negotiation process. Mr. Prakash admitted that he spoke as an outsider as he had no experience working on the Hill. While this may give him less of a voice in Washington, his voice echoes the frustration of many average Americans, and in part, might explain the election of a President who claimed that he was going to fix a broken government.