OPINION:
Senate rules exist to protect both the institution and individual senators. They do not exist to protect voters. The filibuster is no exception.
The simple truth is that Senate Rule 22, which essentially requires 60 votes for the Senate to proceed to any legislation, in many instances allows senators to elude difficult votes. This is and has been true for both sides and across a range of issues. It is most helpful in those instances when a senator is at cross purposes with those who he or she represents. That is, in large measure, why it has survived all these years.
All sorts of senators — from Sen. Elizabeth Warren, Massachusetts Democrat, to the late Sen. Jesse Helms, North Carolina Republican — have used the filibuster to avoid votes on everything from police reform to gas taxes.
Does the requirement to have 60 votes before proceeding to legislation provide important ballast to the legislative process? Probably. In its absence, would the republic dissolve? Probably not.
From a practical and political point of view, it probably would be better in the long run for Republicans if Rule 22 is further minimized. The destruction of the judicial filibuster — thank you, Sen. Harry Reid — has turned out to be a definitive advantage for the Republicans, in large measure because they had a clear plan to exploit it.
But it also has been a definitive advantage because the Republicans have a bit of a built-in advantage in the Senate.
Right now, three Democratic senators — Jon Tester of Montana, Sherrod Brown of Ohio and Joe Manchin III of West Virginia — represent states that are, by pretty much any definition, Republican. There is only one Republican — Susan Collins of Maine — who can be argued to represent a state as definitively Democratic.
Two other Republican senators — Ron Johnson of Wisconsin and Pat Toomey of Pennsylvania — are in states that could be considered swing states. Both states have Democratic governors and two state legislative bodies controlled by the Republicans. Both voted for President Trump in 2016 and President Biden in 2020.
Two Democratic senators — Gary Peters and Debbie Stabenow from Michigan — are similarly situated. Michigan has a Democratic governor, and both houses of the state legislature are controlled by Republicans. It voted for Mr. Trump in 2016 and Mr. Biden in 2020.
Finally, six Democratic senators are from states that are reliably Republican.
The senators from Georgia, Arizona and New Hampshire — Rafael Warnock and Jon Ossoff of Georgia, Mark Kelly and Kyrsten Sinema of Arizona, and Jeanne Shaheen and Maggie Hassan of New Hampshire — are all from states where the governor and state legislature are held or completely controlled by Republicans and which Republican presidential nominees have won or been within a few thousand votes of winning for a number of cycles.
This suite of Democratic senators from states that swing soft pink to red is a pretty good list of those who will have challenging re-election campaigns. Without a filibuster to help them hide from difficult votes, all of them would have to go on the record on the Equality Act, on the PRO (Protecting the Right to Organize) Act, on immigration reform, etc.
That’s ultimately — though not immediately — good for the Republicans.
When differences between the parties are defined and obvious, Republicans tend to do better. The 60-vote threshold blurs the distinctions by helping senators avoid defining votes when they perceive that such votes might hurt them.
Because elected officials can be short-sighted, the chances are pretty good that eventually the Democrats will get rid of most or all of the current Rule 22 and revert to some form of the standing filibuster — in which the minority can hold up the Senate for only as long as they can hold the floor. Senate Minority Leader Mitch McConnell is right that such an approach would create a regime in which consideration of legislation would take a long time and be subject to multiple opportunities for amendments from all sorts of directions.
That is probably bad news for the Senate and the senators. The institution and its constituent parts have a steady preference for order, predictable procedure, and, in some circumstances, the avoidance of clarity.
It is, however, good news for the voting public. The legislative process should be complicated and difficult. Moreover, when voters have clarity and an unobstructed line of sight into what their elected representatives say and how they vote, the democratic process tends to work better.
• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to President Trump and deputy director of the Office of Legislative Affairs at the White House.
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