The Senate’s 60-vote threshold is a bulwark of freedom. Instead of nuking it, the GOP should defund Obama’s agenda.
American voters responded to President Obama’s failed recovery and government overreach by giving Republicans control of the White House, Senate and House. Yet despite this rejection of the Obama agenda, there is a growing fear that efforts to repeal it could be thwarted by the Senate’s filibuster. Democrats hold 48 seats in the upper chamber, and to block legislation with a filibuster takes only 41.
The Republican majority could eliminate the Senate filibuster on legislation using the same procedure Democrats did in 2013 to end filibusters for all nominees except Supreme Court justices. But before remaking the Senate in the image of the House of Representatives, Republicans might revisit why our Founding Fathers designed the chamber as they did.
In the Senate the founders created a living bulwark to stop an overbearing government from taking root in America. During the Constitutional Convention, James Madison wrote that “the use of the Senate is to consist in its proceeding with more coolness, with more system and with more wisdom, than the popular branch.” George Washington is held to have explained the Senate to Thomas Jefferson with a question: “Why did you pour that tea into your saucer?” Jefferson replied: “To cool it.” Washington then explained: “We pour legislation into the senatorial saucer to cool it.”
Unlike representatives, senators were elected by state legislatures, not by popular vote. The 17th Amendment, ratified in 1913, provided for the popular election of senators, eliminating the insulation from swings in public passion that had been provided by having senators chosen by state legislatures. The Founders also gave senators longer, staggered terms so that only a third of them would stand for election at any one time. The chamber was a continuous body, with each successive Senate bound by its previous rules, unlike the House, which adopts new rules every two years. The House was empowered to act, but the Senate, with its unlimited debate, was empowered to stall. Unlimited debate would impede the institution’s operations unless a broad consensus existed—exactly the constraint that the Founders envisioned.
Senate debate could not be terminated at all until 100 years ago, when war, as often happens, left government substantially altered. Before America had entered World War I, a small number of senators were determined to oppose the arming of merchant ships. That led the Senate to create its “cloture” procedure. A new Senate rule—adopted, appropriately, by a two-thirds majority—allowed the ending of debate if two-thirds of those senators present and voting agreed. In 1975 the Senate changed the cloture threshold to three-fifths of all sitting senators.
But there was a loophole—what has come to be known as the “nuclear option.” A simple majority could upend Senate rules by voting to overturn the ruling of the chair on a motion to end debate. For nearly 200 years parties threatened to limit debate through this tactic, but no one actually did so until 1980, when then-Majority Leader Robert Byrd of West Virginia used it to reduce the number of cloture votes needed on nominees from two to one.
As Caesar’s crossing of the Rubicon triggered the decline of the Roman Senate, so the Senate’s greatest modern defender, Sen. Byrd, established the precedent for Mr. Reid’s degradation of the rules in 2013. Democrats now regret this action, but not yet as much as they will in the weeks and months to come.
Republicans are now under pressure to employ the Byrd-Reid precedent to nuke the filibuster on legislation. Yet most Republicans—unlike most Democrats—do not believe that the ends justify the means. They believe that the greatest risk posed by actions taken during the Obama presidency lies not in what was done—which voters rejected, and which can be undone—but in how it was done. If Republicans now follow the Democrats’ lead in overriding historical constraints like the filibuster rule on legislation, the damage to the system might never be repaired. Using Mr. Obama’s methods to overturn his agenda legitimizes his methods, and that is the greater peril for limited government in America.
Fortunately there is another way to reverse President Obama’s transformation of America. Using the power of the purse, as our Founding Fathers intended, Congress can defund almost any government action with a simple majority in both houses and the president’s consent. Mandatory spending, which Congress cannot reach with the appropriations process, can be altered through a budgetary process known as reconciliation, which allows the Senate to act with 51 votes to achieve savings mandated in the budget.
Using appropriations and reconciliation, Congress can annul the Obama agenda by simply stanching the lifeblood of government power—money. Republicans could give Democrats a choice: Either allow the Senate an up-or-down vote on replacements for defunded programs, or let those programs cease to function. Having defunded ObamaCare and Dodd-Frank, Republicans could then offer their alternatives. If the Democrats filibuster those bills, they would be responsible for Congress’s failure to pass replacements. But even in that event, America would be better served repealing ObamaCare outright than allowing it to continue to constrain economic growth and infringe freedom in its current form.
Defunding the Obama agenda would give the Democratic minority a strong incentive to compromise. With determination and imagination, the Republican Senate can restore the same kind of bipartisanship that cut taxes in 1981, reformed the tax code in 1986, reformed welfare in 1997, and balanced the budget in 1998.
At the heart of the fight over limiting Senate debate is the broader question of limited government. During the 111th Congress, Democrats held a rare supermajority in the Senate, with their party totally committed to a massive expansion of government in American life. This allowed Mr. Obama to overcome a Senate filibuster and pass major legislative changes with no bipartisan support. Predictably, he went further than the country wanted to go, and voters have now demanded that the programs be repealed or replaced.
When a normal partisan balance exists in the Senate, the threat of a filibuster forces the majority to accommodate the concerns of the minority. It forces political agendas to be stripped out and extreme ideas to be moderated. The filibuster forces compromise and helps guarantee continuity of government policy. That means Americans generally don’t have to be political creatures, constantly agitating for the protection of our rights. We are free to focus on our daily lives without fear that every election will radically alter them.
The courts have been little help, as they have allowed many of our constitutional protections to be stripped away. In the 1930s they rewrote the Constitution’s Commerce Clause to justify almost any government action. In this decade the Roberts Court failed to protect individual health-care rights.
The Senate, with its diddling, dawdling and debating, is one of the last, best sentries at the gate to protect our freedom. In failing to bend reflexively to the whims of the majority for 228 years, the upper chamber has generally performed as the Founding Fathers hoped. If the goal were only to repeal ObamaCare, Dodd-Frank and other parts of the Obama agenda, it would certainly be easier to follow the Byrd-Reid precedent. But limited government is inseparable from unlimited Senate debate.
Republicans, in following the Democrats’ lead, would sweep away one of the last real protections of the rights of the American people. Institutional continuity and governmental stability would be weakened, and the ancient structure that has shielded our freedom and prosperity for centuries eroded. Radical lurches rather than gradual change would become the rule in politics and then all else—precisely what the Senate was designed to block.
Changing America, for good or evil, should be difficult. It should require skill and persistence and a willingness to take your case for change to the people. If Republicans are willing and able to do the hard work of governing within the constraints prescribed by the Founders, the Obama agenda can be overturned—while preserving important institutional safeguards like the Senate filibuster.
Mr. Gramm, a former chairman of the Senate Banking Committee, is a visiting scholar at the American Enterprise Institute. Mr. Solon is a partner of US Policy Metrics.