Giving Democrats a clear Senate majority is a very bad idea

If you think today’s political climate can’t get worse, wait until Democrats jettison the filibuster.

This year’s elections will decide not only the Senate’s composition, but also the institution’s character and, hence, the tenor of politics. If you think this tenor could not get worse, wait until a Democratic-controlled Senate, acting impatiently on a slender majority, at last abolishes the legislative filibuster.

Some say filibusters, which require 60-vote supermajorities to end debate on significant legislation, are unconstitutional because the Constitution mandates only five supermajorities (for ratifying treaties, endorsing constitutional amendments, convicting in impeachments, overriding vetoes and expelling members). But the Constitution does not permit only what it mandates. Besides, it empowers each chamber to set its own rules.

Quadrennial presidential elections, biennial House elections and staggered Senate elections make divided government likely: It has existed more often than not for five decades. This strengthens the case for the filibuster as a means of forcing factional compromises.

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Imagine a future without the filibuster: After abolition, the first Senate controlled by a slender Republican majority might pass a national right-to-work law, a national voter ID law and much more. The next Democratic-controlled Senate might repeal all this, before enacting a $20-dollar-an-hour national minimum wage, card check unionization elections and much more. Then, a subsequent Republican-controlled Senate would continue the ping-pong legislating and repealing. The “mutable policy,” “unstable government” and “public instability” that the Founders (Federalist 62) warned against would become normal.

Barack Obama’s 2020 canard that the filibuster is a “Jim Crow relic” is refuted by the unlimited Senate debate that preceded segregation laws (and even the Civil War), and filibustering by progressives such as early-20th-century Wisconsin Sen. Robert La Follette. More recently, Democrats used the filibuster to thwart Republicans’ attempts to repeal Obamacare, block funding for Donald Trump’s border wall, force enrichment of the pandemic-era Cares Act, preserve taxpayer funding of abortion, block criminal justice reform, and for other progressive causes.

In 2005, Obama, then a member of the Senate minority, warned that “if the majority chooses to end the filibuster,” “bitterness” and “gridlock” would worsen. Such situational ethics are not uncommon:

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Without the filibuster, the Senate would be “subject to the winds of short-term electoral change.” (Democratic leader Chuck Schumer, in the minority in 2017.)........

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