I have previously noted the curious positions of some senators who want to preserve the filibuster but only if it is not used to block legislation that they are demanding. For example, Sen. Angus King (I., Maine) has declared that he supports the filibuster but would kill it if it is used to block the federalization of elections. The point of a filibuster is that forces compromise on divisive issues. However, the relativistic position on the filibuster continued today with Sen. Amy Klobuchar (D., Minn.). The senator previously called for the preservation of the filibuster but now wants it killed after the Supreme Court last week declined to block a Texas abortion law.
I will not repeat my prior columns addressing misleading analysis on the Supreme Court order which neither upheld the Texas law nor overturned Roe v. Wade. However, the order has been used by Democrats to repeat demands for an array of radical reforms from packing the Court to killing the filibuster.
Sen. Klobuchar has responded by adding her own voice to the call for ending the filibuster. On Sunday, the Senator told CNN:
“So, my solution to this, which is my solution for voting rights and so many other things, including climate change, where one side of the country is in flames, the other side of the country is flooded, with people dying submerged in their cars, I believe we should abolish the filibuster. We just will get nowhere if we keep this filibuster in place.”
However, in 2013, Klobuchar was lamenting that the rule had ever been curtailed and said that she wished that the rule could be returned in full force. The reason? Brett Kavanaugh.
The move by Democrats to use the “nuclear option” led to the eventual removal of the rule for not just lower judges, but Supreme Court justices. That meant it could not be used to block Kavanaugh so Klobuchar argued it would be good to resume for future such cases. In 2013, she went on a different Sunday show to declare: “I would’ve liked to see 60 votes, no matter what the judge is. I don’t think we should’ve made that change, when we look back at it. But it happened because we were so frustrated, because President Obama wasn’t able to get his nominees.”
She then expressed a preference to bring back the full rule without exceptions. In fairness to Klobuchar, she admitted that the damage was unlikely to be reversed and was supportive of the eventual compromise. However, we now have senators saying that they could support a filibuster rule so long as it is not used on climate change, infrastructure, voting rights, abortion, or other deeply divisive issues.
The point remains the same. Filibusters go back to ancient Rome as a device to force compromise. However, the point is not to create exceptions or to limit its use to block legislation of other members. As noted earlier, the rule has been used for different purposes, including, most infamously, to oppose 1950s civil rights legislation. Over the years, it has been modified, as in 1975 when the threshold to end a filibuster was reduced to 60 votes. However, both parties agreed that the rule was needed to force greater consensus in the Senate, which fashions itself “The world’s greatest deliberative body.”
There are good-faith arguments that filibusters frustrate democratic voting. However, this is arguably a time when the value of the rule is most evident and most compelling as a compromise-forcing legislative device. The Senate is split 50-50, a reflection of the country’s division. (The House is little better off, with a majority of just a handful of votes, the smallest majority since World War II.) That leaves Democrats struggling to pass bills based on the tie-breaking vote of Vice President Harris.
While politicians are notoriously for relativistic on such issues, the whole point of the filibuster is to maintain a consistent rule regardless of the subject matter of legislative action. Instead, members of Congress are arguing that they support the rule so long as it was not used to frustrate their own agenda.
The abortion issue remains deeply divisive in this country. Moreover, the public remains overwhelmingly opposed to court packing. If anything, these divisive times would favor rules designed to force compromise . . . without exception.