by Michael Dorf
It will come as no surprise to regular readers of this blog that I am not optimistic about the legislation likely to emerge from the new Congress. However, I do see one possible salutary outcome: Perhaps Republicans in the Senate will "go nuclear" and abolish the filibuster for ordinary legislation.
When the Democrats abolished the filibuster for executive appointments and lower court judges in 2013, Republicans cried foul. Senators Alexander and McConnell warned, in essence, that what goes around comes around. Now that the Republicans have their Senate majority but fewer than 60 seats, it will be tempting for them to follow Harry Reid's lead and finish off the filibuster for ordinary legislation. (They have no incentive to eliminate it for Supreme Court nominees during a Democratic Presidency; more about the Supreme Court in a postscript below.) Democrats should be sanguine about this possibility.
The filibuster is bad for small-d democracy for the obvious reasons. The point is not that the 60-votes-for-cloture rule gives rights to a minority. Constitutional democracy is not simple majoritarianism. It is consistent with, and indeed often requires, respect for minority rights. But there is no reason to think that this particular protection for minority rights--allowing a numerical minority in a body that already overwhelmingly overrepresents small-state and rural interests--is needed. I wouldn't necessarily say that the current cloture rule is unconstitutional: Article I makes each house the arbiter of its own procedures, after all, and a supermajority for cloture has been with us for a very long time. But the fact (if it is a fact) that the current cloture rule is constitutional does not mean it's a good idea.
Granting that allowing a simple majority to end debate (except perhaps for a conventional "talking" filibuster) would be good for small-d democracy, might it nonetheless be bad for Big-D Democrats? The short answer is no. Allowing the Senate to pass bills with only 51 votes would still leave President Obama with a veto, which can only be overridden by 67 votes in the Senate. So as a practical matter, little changes for the next two years.
To be sure, presidents don't like to have to use their veto power. They think it makes them look weak. Accordingly, since the 2010 midterms, Senate Democrats have protected President Obama from needing to veto more than a couple of bills. Republican abolition of the filibuster for ordinary legislation would necessitate more vetoes, but a second-term president in his last two years in office has little to lose on that score. Obama's threatened veto of a bill approving the Keystone pipeline indicates that he has reached that same conclusion.
What about the long run? Presumably some day there will be a Republican president and Republican majorities in both the House and Senate, but with fewer than 60 Republican Senators. Do Democrats have more to lose from being unable to block legislation in that scenario than they have to gain from the ability to enact legislation in a future when there is a Democratic President with Democratic majorities in both the House and Senate? That question is in some sense unanswerable, of course, but other things being equal, Republicans benefit more from gridlock than do Democrats because Republicans are generally more hostile to regulation.
Here too there are subtleties. Democrats stand to lose when Congress repeals existing laws, not just when it fails to enact new laws, and so making it easier for Congress to legislate also create risks of excessive deregulation. But on the whole I think those risks are outweighed by the risks of gridlock. Even without repealing existing laws, a blocking minority can gut those laws by denying funding for enforcement. So over the long run, it seems to me that Democrats benefit more than Republicans from abolition of the filibuster for ordinary legislation. Accordingly, if Harry Reid is a good long-term poker player, he will obstruct Republicans at every turn, thus goading the Republicans into abolishing the filibuster in a fit of pique.
Postscript: One potential consequence of abolishing the filibuster for ordinary legislation is that political barriers will be lowered for abolishing the filibuster for Supreme Court nominees the next time that a President nominates a Justice for a Senate with a sub-60-vote majority of his party. It seems to me that this would be more or less a wash. It would make it easier for Republicans to nominate conservatives and for Democrats to nominate liberals, at least when they control the Senate. In his 2007 book The Next Justice, Chris Eisgruber (now President of Princeton) argued that retaining the filibuster made the most sense for judicial (especially Supreme Court) nominees because it pushed presidents to name moderates, which is desirable in an ostensibly apolitical branch. That may be true in theory, but the last decade or so suggests that the possibility of filibustering Supreme Court nominees will eventually lead to gridlock. Indeed, quite apart from the cloture rule, the trend line for recent nominations suggests that it may be impossible for a president to get anybody confirmed by a Senate controlled by the other party, and so abolishing the filibuster for the Supreme Court might be needed just to maintain nine Justices on the Court.