Filibuster abuse is symptom of larger problems
© Greg Nash

For the partisans, Neil Gorsuch’s nomination for the Supreme Court was the final shot in the war to maintain Senate decorum. But if Democrats are successful in forcing the end of the filibuster, the U.S. Senate will be irrevocably changed – and not for the better. How we arrived at this point is a lesson in political frustration, special interests stoking the ire of extreme ideologies, and a dangerous disregard for the rules that make the Senate, well, the Senate. It also makes no sense for Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerBarr to testify before House Judiciary panel Graham won't call Barr to testify over Roger Stone sentencing recommendation Roger Stone witness alleges Trump targeted prosecutors in 'vile smear job' MORE (D-N.Y.) to force the Senate into a procedurally self-defeating and tactically puzzling action that leaves Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Senate braces for fight over impeachment whistleblower testimony Trump declares war on hardworking Americans with new budget request MORE (R-Ky.) in a position to have to call Schumer’s bluff or forever be blackmailed by this tactic.

As the name suggests, the nuclear option is essentially a destructive act. It’s an end-run around the Senate’s rules for closing off the debate. It makes a mockery of the Chamber’s precedents, and it reduces what little comity remains among senators, which is a huge loss since the body requires consensus to operate effectively. As frustrating as the filibuster may be, it is what makes the Senate the Senate. Without this vital protection of the rights of the political minority, the upper house merely becomes just another majority-run chamber, and the Founding Fathers already gave that distinction to the House of Representatives. The Senate functions differently because it is intended to. It runs slowly so that sweeping legislative changes must be done thoughtfully and with consensus from all sides. 

In 2013, when then-Majority Leader Harry ReidHarry Mason ReidThe Hill's Morning Report - Sanders on the rise as Nevada debate looms Bottom line Harry Reid: 'People should not be counting Joe Biden out of the race yet' MORE (D-Nev.) triggered the nuclear option, Democrats voted to do away with the filibuster for Executive Branch nominees and all Judicial Branch appointments, except those for the Supreme Court. The resulting rancor in the Senate launched a “nuclear winter” that paralyzed the legislative progress. Reid’s name became synonymous with partisan polarization among Republicans. Most longer-serving senators still regret the gutting of the filibuster on executive nominees and the sleight-of-hand Reid used to do it.  

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The filibuster has devolved from a rare tool judiciously used by the minority to a de facto starting point for major legislation. Since Gorsuch is about as mainstream a choice a Republican president can make, his nomination was essentially an olive branch to Democrats with whom the White House hoped to work. Gorsuch was unanimously approved by the Senate for his seat on the U.S. Court of Appeals. He also unanimously received the highest possible rating by the American Bar Association and has been supported by scores of editorial boards, none of which are bastions are conservatism. It’s also important to note that seating Gorsuch will not alter the ideological makeup of the Court. That makes forcing the nuclear option even more confounding: After all, why not hold fire until the next nomination when a conservative firebrand is more likely to be named?

The problems of partisanship and gridlock are only exacerbated by these draconian tactics. It’s time for lawmakers to take a breath and fully understand the consequences of their actions. The more Congress shows the American people that it cannot do its job, the more power will go to the Executive Branch. There’s no reason for President Donald TrumpDonald John TrumpCensus Bureau spends millions on ad campaign to mitigate fears on excluded citizenship question Bloomberg campaign: Primary is two-way race with Sanders Democratic senator meets with Iranian foreign minister MORE not to follow his predecessor’s use of executive orders to achieve his goals. Right now, we have a system of checks and balance that, when it works, provides counterweights so that sweeping legislative changes require consensus. Right now, it’s impossible to find consensus, but this has happened before.

Every few decades, Congress takes an objective, critical look at itself and determines that it needs significant measures to get rid of the dysfunction. In the past, lawmakers have formed a bipartisan, bicameral Joint Committee on the Organization of Congress to examine ways to improve its operations. Congress has created three of these committees before (in the 1940s, 1960s, and 1990s), and they considered virtually every aspect of the legislative process. Each was instrumental in the evolution of the legislature.

Given the depths of dysfunction and gridlock, it’s time now for Congress to create a new Joint Committee that could address filibuster abuse, which is far from the only problem plaguing Congress: The broken budget process, an atrophied committee system, and insufficient personnel and resources are just a few more of the pressing issues. Senators from both parties have offered good ideas on how to reform the filibuster, and a Joint Committee should examine those proposals carefully and come to a consensus on how to move the Senate forward as envisioned by the Founders. Congress has passed broad, sweeping legislative packages that have changed our country for the better. Right now, they can’t agree on whether the peanut butter or the jelly goes on the sandwich first. It’s time for significant reforms that will make it unnecessary to resort to drastic measures like the nuclear option.

Mark Strand is the president of the Congressional Institute.


The views expressed by this author are their own and are not the views of The Hill.