Ingenious Proposal Emerges for Reforming the Senate Filibuster, Which Promotes Paralysis at Washington

Mature minds understand that if you desire a particular result, you should embrace the means thereto. Sensible people want the unconstrained presidency of recent (Obama, Trump, Biden) experience restrained by a resuscitated Congress. Such people should support a preserving reform of the Senate filibuster.Three years ago, two prodigies — akin to 5-year-old Mozart producing piano compositions — devised a subtle proposal that deserves to shape this year’s 35 Senate contests. Thomas Harvey and Thomas Koenig were Harvard Law School students (and members of the Federalist Society) when they published in National Affairs a thoroughly Madisonian reform.It scrupulously respects the constitutional architecture of checks and balances. And, like James Madison, the profoundest Founder, it simultaneously serves majority rule and what has been nicely termed mitigated democracy.The theory justifying the filibuster has been slain by a slew of facts. They are the dismal result of the theory’s application in this era of three related, and durable, developments: intense polarization of the parties, aggressive unilateralism by presidents and performative posturing by legislators disinclined to legislate.In theory, the filibuster — a supermajority (60-vote) requirement for passage of significant legislation — should compel across-the-aisle engagement. This would protect the nation from oscillating episodes of extreme policies implementing one party’s pristine agenda, until this is undone by the other party’s ascendency.In practice, the filibuster has prevented healthy politics — the give-and-take of legislative bargaining that polarization makes career-threatening. Into this void has flowed presidential power: the promiscuous issuance of executive orders, and the largely unsupervised (by Congress) sovereignty of agencies administered by the president. In today’s and the foreseeable future’s context, the filibuster as an incentive for negotiations is a failure, and an enabler of presidential unilateralism.Messrs. Harvey and Koenig’s elegant two-track proposal would require Congress to function as a legislature. Track one is the status quo: passing bills that receive 60 votes. Absent that rarely existing precondition, however, the authors propose a second track:Under Senate rules amended as Messrs. Harvey and Koenig advocate, a bill with majority but not 60-vote support could be passed by the Senate sitting as a “Committee of the Whole.” Such a bill could be eligible for passage by a simple majority vote at the beginning of the next Congress. After an intervening election, during which the contested legislation could be a debated issue. The bill would be presented to the president only after twice passing the Senate. The second time, it would be voted on by the one-third of senators elected or reelected while the bill’s second consideration was pending.By concentrating policymaking in Congress, the Harvey-Koenig proposal would, they wrote in 2023, “tether political debate and the resulting legislation to reality,” thereby altering “the character of elections and the discourse that defines them.” The result would be “a more sober political culture.” Campaigns “would be less apt to dwell on abstract argumentation and identity,” and more apt to focus on actions of the Committee of the Whole.Madison’s friend Thomas Jefferson, in his 1801 First Inaugural, said that “though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable.” The crux of Madisonian politics is the process of tempering and improving majoritarian impulses by slowing and refining them through “successive filtrations.”The impediment to the Harvey-Koenig proposal is what it is designed to surmount: Capitol Hill’s curdled culture. This might prevent enabling changes to Senate rules. Current behavior is not encouraging.Today’s Senate Republicans are mostly oblivious of — or, worse, indifferent about — how they appear. In 2024, they solemnly warned that if they did not win control of the Senate, 2025-2026, Democrats would degrade it by abolishing the filibuster. In 2025, however, Senate Republicans, in lockstep with House Republicans, crammed most of the president’s agenda into a single bill that they passed on a party-line vote using the parliamentary maneuver called “reconciliation,” which prevents a bill from being filibustered. Now, here they go again. Congressional Republicans are advancing a second reconciliation measure, this time involving a few legislative odds and ends, and are contemplating a third.Democrats, too, are situational ethicists regarding congressional — and presidential — behavior. Nothing will change absent the powerful incentive of voter insistence. So, this autumn, voters should ask Senate candidates of both parties if they will support the filibuster reform explained above.Candidates who will not should be spared the discomfort of election. The reasonable presumption will be that they do not really want to be legislators.The Washington Post

Ingenious Proposal Emerges for Reforming the Senate Filibuster, Which Promotes Paralysis at Washington

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