Op-Ed: Mike Fragoso: What if the Republicans nuke the filibuster?
Democrats clearly don’t want that system, but if their persistent disdain for legislative norms breaks it, they may — as usual — regret it a lot sooner than they think.
A growing talking point among Democrats is that Republicans, with unified government, could open the government at their pleasure. At first blush this is their version of “boob bait for the bubbas,” but upon further consideration they may think they know what they’re doing. It’s becoming increasingly possible that Democrats are positioning Senate Republicans to nuke the filibuster to get the clean CR. This is a very bad strategy for Democrats.
Using must-pass vehicles to enact their filibuster agenda is not a new tactic for Democrats. In the fall of 2021, as Republicans insisted that Democrats use a reconciliation instruction to lift the debt ceiling without Republican assistance, Sen. Chuck Schumer (D., N.Y.) responded by saying he wouldn’t do that; instead he’d put it to Sens. Joe Manchin and Kyrsten Sinema: nuke the filibuster or default on our debt.
Even filibuster purists like those two would have had a very hard time allowing the country to default in order to preserve a Senate procedure. In the end, Republicans relented and worked with Democrats to raise the debt ceiling.
But while in 2021 Schumer was putting a gun to the head of his moderates on the filibuster, this time he’s actually handing Republicans the loaded weapon. Democrats assume it’s in their long-term interest for the filibuster to be gone. Perhaps. But if Republicans were forced into it, you can bet they would spend the next thirteen months trying to make sure that it isn’t.
What could Republicans do with unified government and no filibuster?
First thing’s first, they sure wouldn’t pass a clean CR. With no filibuster, why not just do party-line full-year appropriations? Zeroing out any and all Democrat priorities, of course, and codifying DOGE cuts. Under the filibuster the Republican goal on regular appropriations has long been “breaking parity” on defense and non-defense. This means that, as spending grows every year, defense spending grows more than non-defense spending grows. With no filibuster it’s an entirely new ballgame with defense growing while non-defense is cut to the bone.
Once Congress is done locking in an appropriation that would completely gut the Democrats’ NGO-Industrial Complex and their clients in the federal bureaucracy, it could turn to election security. National same-day voting for federal elections? Yes. Ballot-harvesting Ban. Sure. Citizenship requirement and national voter ID? Of course. Repeal of, at minimum, the “bail-in” provision of the Voting Rights Act? Check. Elimination of contribution limits? Why not! With no filibuster in place, it’s no longer an argument about whether to federalize elections, but an arms race to see who can do it better, and Republicans would get the first move.
And while they’re at it, they can retrocede the District of Columbia to Maryland to finally end the unconstitutional D.C. statehood movement.
After that it would a long march through Republican priorities. Ban collective bargaining for government employees, thereby eliminating a powerful base of the Democrats. Enact national right-to-work to protect the freedom of American workers, and universal school choice to protect American families. Both, of course, would also land body blows to Democrat political organizing.
On immigration Congress will defund sanctuary cities, it can dust off the old Toomey bill, or the old Vitter bill, or maybe do Kate’s Law. In fact, you can bet Congress will pass any prior immigration law named after a person. They will finally close the asylum loopholes that drive illegal immigration and reform the legal immigration system to focus on merit, not accident, and better serve the interests of American citizens.
They’ll enact the confiscatory endowment taxes in the Ivy League that were prevented by the Byrd Rule.
They’ll protect our economy by finally reforming the permitting process. While they’re at it they can also reform the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, and any other ossified environmental statute that has become a full-employment plan for the Sierra Club and the NRDC.
To make sure all of this actually happens, they’ll need to add fifteen seats to the D.C. District Court and five seats to the D.C. Circuit. The expected increase in litigation will need to be accommodated. At the same time, the long-desired good-governance reform of breaking up the Ninth Circuit could finally come to pass. Of course, in order to handle the increased workload of a split, both the Ninth and Twelfth Circuit would each need at least five more judges.
These are just the obvious ideas. Who knows what else Congress can come up with in a year. Maybe Texas would like to divide itself into four more manageably sized States? What do people think of West South Dakota and East South Dakota? The only limits are Republicans’ imagination and the ability of President Donald Trump to whip the House majority into line.
Or, on the other hand, we could keep the current system where paying the troops isn’t an appropriate hostage to take and lasting change requires buy-in from both parties.
Democrats clearly don’t want that system, but if their persistent disdain for legislative norms breaks it, they may — as usual — regret it a lot sooner than they think.
Michael A. Fragoso is a fellow at the Ethics & Public Policy Center and a partner at Torridon Law PLLC. He was previously chief counsel to Senator Mitch McConnell.