The Filibuster and the Shutdown

Over at Balkinization, David Super, a congressional process expert, has these comments about why preservation of the filibuster is, in his view, in the best interests of both parties. Thus, Super suggests Republicans are unlikely to end the filibuster to pass the continuing resolution that would re-open the government:

…For each party, the narrow question is whether protecting the public policies they have is more valuable than any gains they could hope to force through in a purely majoritarian system.  The Trump Administration is providing a compelling lesson for the complacent about the enormous power of destruction.        Defending civil rights and environmental laws remaining from more enlightened eras surely is more valuable than whatever Democrats might accomplish next time they have “trifecta” control of the federal government – especially if that could be destroyed before it has even taken full effect as soon as power swings back to Republicans.  This is especially true because the disappearance of the filibuster likely would expose more Democratic Members’ reservations about some measures activists support:  the potential benefits of pure majoritarianism for the progressive agenda likely are far less than progressives believe because they have failed to sell large parts of that agenda within the progressive coalition.  (Bullying skeptics into silence is not at all the same thing as persuading them to cast difficult votes.) …

Republican revolutionaries may prefer to maximize their destruction of progressive policies even at the expense of Democrats enacting more of the same the next time they hold a trifecta.  But many Republicans have close ties to businesses, which often prize policy stability to enable planning more than maximizing particular policies that they favor.  And on a human level, Republican senators get emotionally invested in projects back home that could be imperiled if Democrats take power with the same kind of scorched earth mentality that the Trump Administration has.  Finally, the many Republicans privately alarmed by the Administration’s wild policy gyrations, and fearful of being blamed for an economic catastrophe, may not be eager to surrender their one plausible avenue for making Democrats share responsibility. …

The filibuster – forcing negotiations even among ideological opposites – is one of the last vestiges of reason in a political system driven overwhelmingly by maximalism on both sides.  And with each political party having lost half of the past two, four, six, eight, and ten presidential elections – with no candidate securing even 54% of the popular vote – each has much to fear from unrestrained maximalism when the other one squeaks into office. 

     Progressives would be foolish to regard the filibuster as sacrosanct:  Democrats’ attempt to eliminate it in 2022 gave Republicans reason to doubt that their forbearance now will be reciprocated later.  Thus, Democrats will eventually have to accept a compromise continuing resolution falling far short of what the baying maximalists of social media – and their bot allies – would find acceptable.  Numerous Republican senators are maintaining strategic ambiguity on the filibuster. 

     But unless Democrats push Republicans to the wall, the filibuster – and with it some measure of leverage in the minority – stands a good chance of enduring.  Senator Thune has eroded the filibuster in two relatively small ways – broadening exceptions to the Byrd Rule’s limit on extraneous material in filibuster-immune reconciliation bills and allowing nominations to be voted on as a group – but his party’s willingness to go along with those tweaks by no means signals receptivity to a direct attack on the filibuster.

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