Senate Sergeant-at-Arms via Associated Press
President Donald Trump is again urging the Senate to eliminate the filibuster rule for ordinary legislation, so that it can pass key parts of his legislative agenda currently being held hostage by the Democrats.
But Senate Majority Leader Mitch McConnell has already vowed to keep the rule in place, and there are very good reasons to do so. The filibuster is one of the few remaining checks against rampant, destructive majoritarianism in the legislative branch.
The advantages of that may not be so clear in the wake of the Senate’s failure to repeal and replace Obamacare. But the filibuster rule prevented Obamacare from being even worse in 2009-10, thanks to Sen. Joe Lieberman (I-VT). He denied his party a filibuster-proof majority for the so-called “public option,” which would have been a fast-track to government health care. Then, Democrats grumbled about the filibuster; Republicans were grateful for it.
Trump, too, will be grateful for the filibuster when he leaves office in (hopefully) eight years, because it will protect his legacy from Democrats, who will be eager to undo it.
True, the filibuster prevents many good bills from passing. But it also blocks many bad ones. Democrats evaded the filibuster to pass Obamacare, and they continue to defend it, but it has destroyed their party. They regret canceling the filibuster for most judges and Cabinet posts, too.
More generally, the filibuster is the only mechanism that forces the parties to negotiate with each other. At a time when Democrats are blocking everything Republicans want to pass, negotiation seems pointless.
But there are ways around that impasse that are better than changing the rules.
One, as President Trump has suggested, is to elect more Republicans — and with ten Democrats up for re-election in 2018 in states he won, there is a chance to win 60 seats.
Another way is to craft better legislation that would make the Democrats look foolish to oppose. If the Republicans were to craft a replacement for Obamacare that provided some kind of minimal health insurance guarantee for all Americans — the “Trump Option” — but dismantled the rest of the existing mandates and regulations, Democrats who balked would have to explain to their voters why they had turned down the very thing their voters want.
The only condition under which the Senate ought to consider ending the filibuster rule is if the 17th Amendment were repealed, returning the election of Senators to the state legislatures rather than the popular vote. That would temper majoritarian impulses on Capitol Hill and restore the Senate to the deliberative model that the Framers had originally designed.
Until then, the filibuster rule is the best substitute, and keeps the spirit of the Constitution alive.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.