<b>November 5, 2021</b> 

<u>A misguided defense of the filibuster</u>

I’ve been hoping that prominent Republicans would come forward, denounce Trumpism and McConnell-style obstructionism.  Mitt Romney’s recent opinion piece,[1] devoted to defending the filibuster, is a disappointment, especially as it tends to support the latter practice.  He recites a familiar but erroneous story that the filibuster was somehow part of Senate rules from the beginning, but bases his defense primarily on an argument that its effect is to require bipartisan support for legislation.  There is merit in his claim that the best legislation is that which commands support by both parties, although he overstates the case: “Anytime [sic] legislation is crafted and sponsored exclusively by one party, it is obviously an unserious partisan effort aimed at messaging and energizing that party’s base.”  To the contrary, Democrats are, ineptly but seriously, advocating important legislation for the good of the country.

The Senator points out that Democrats have defended the filibuster when it served their purposes, and might regret abandoning it now.  “There is a reasonable chance that Republicans could win both houses of Congress in the next election cycle and, further, that Donald Trump could be elected president once again in 2024. Have Democrats thought through what it would mean for them for Trump to be entirely unrestrained, with the Democratic minority having no power whatsoever? If Democrats eliminate the filibuster now, they — and the country — may soon regret it very much.”  That observation seems to be an admission that Republicans can’t be trusted with power.

Four other considerations are missing from his analysis.  First, the filibuster once required a Senator to be serious enough in his opposition to a bill to be willing to speak at length; now the phantom filibuster is invoked virtually by saying the word, creating a situation in which much legislation requires sixty votes to pass.  The Senate was not so designed.  The second issue is that the filibuster is overused, used almost routinely: “There have been more than 2,000 filibusters since 1917; about half have been in just the last 12 years.”[2]  This so impedes the work of the Senate that “161 exceptions to the filibuster’s supermajority requirement have been created between 1969 and 2014, according to an analysis by the Brookings Institution’s Molly Reynolds.”[3]

The third problem is the unprincipled use of the filibuster by the Republicans, not in search of negotiation or compromise, or in pursuit of principle, but simply to obstruct. An apt description of the minority leader makes the point:  “Of course, this is the same Mitch McConnell who said of Mr. Biden, ‘100 percent of our focus is on stopping this new administration.’ . . . And the same Mr. McConnell who said that he would not confirm a Biden nominee to the Supreme Court if Republicans recaptured the Senate in 2022.”[4]     

Finally, requiring a supermajority in the Senate exacerbates its undemocratic structure.  Each State  has two Senators regardless of population.  The GOP’s ability to win senatorial elections in small states gives it numbers in the Senate far out of proportion to the number of people it represents.  As one study put it, referring to the recent election, “[T]he Senate will be split 50-50, but the Democratic half will represent 41,549,808 more people than the Republican half.”[5]  Another source estimates the current discrepancy at between “nearly 40 million" and 42 million.[6]  This means that legislation can be blocked not only by a minority of Senators but by Senators representing an even smaller minority of the people.

Senator Romney is a good man and is not a blind follower of the GOP agenda, but his essay tends to give that agenda aid and comfort.

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<b>1.  https://www.washingtonpost.com/opinions/2021/10/31/mitt-romney-filibuster-senate-democratic- institution/

<b>2. https://www.brennancenter.org/our-work/research-reports/filibuster-explained

<b>3. Ibid.

<b>4. https://www.nytimes.com/2021/08/06/opinion/senate-mcconnell-democrats.html

<b>5. https://www.vox.com/2020/11/6/21550979/senate-malapportionment-20-million-democrats- republicans-supreme-court

<b>6. https://www.theguardian.com/us-news/2021/mar/12/us-senate-system-white-conservative-minority