Thursday, May 4th, 2017
Gary Schmitt
May 4, 2017 | AEIdeas
As President Trump has made clear in past statements and comments, he’s not a particularly astute student of the Constitution or its history. So it was no surprise when he was pilloried for suggesting in an interview with Fox News—or, more accurately, being read as suggesting—that the Constitution and its system of separated powers was “archaic.” For those looking for any sign of authoritarianism on the part of the president, it was a hyperventilating moment.
But this is what Trump actually had to say:
Trump: I understand what has to be done, I get things done I’ve always been a closer. We don’t have a lot of closers in politics and I understand why. It’s a very rough system, it’s an archaic system. You look at the rules of the Senate, even the rules of the House, bit the rule of the Senate and some of the things you have to go through, it’s really a bad thing for the country in my opinion.
There are archaic rules and maybe at some point, we’re going to have to take those rules on because for the good of the nation things are going to have to be different….
Fox News: Like what, how would you change them?
Trump: Well, you know, you look at the voting and you look at the filibuster system. And it used to be. You know, I always thought of filibuster where you stand up and you talk all day and then somebody else—
Fox News: You don’t have to do that anymore.
Trump: No, you don’t have to do it anymore. Today you say filibuster guys sit home and they watch television or whatever they do. I think, you know, the filibuster concept is not a good concept to start off with but if you’re going to filibuster, let somebody stand up for 20hours and talk and do what they have to do or even if they are reading comic books to everybody, let them do it but honestly, the whole with so many bad concepts in our rules and it’s forcing bad decisions.
Putting aside Trump’s typical garbled formulations—and that his remarks were obviously prompted by his frustration with the lack of success in enacting promised legislation—doesn’t Trump have a point about the problematic centrality of the filibuster in today’s Senate? With few exceptions, very little can be legislatively accomplished unless 60 votes can be mustered there even though nothing in the Constitution requires this super-majority for passing ordinary legislation or appropriation bills. The constitutional system of separated powers and checks and balances is no doubt a complicated one. But it was also designed to allow a representative and refined majority to have its say in the end.
And isn’t Trump correct in saying that the current rules allow an individual senator to have the effect of a filibuster without having to do the hard work of actually engaging in a filibuster? As my AEI colleague John Yoo has noted, “the filibuster has strayed far from its roots in promoting deliberation. As in the 1939 film ‘Mr. Smith Goes to Washington,’ senators had to filibuster by physically delivering speeches to prevent the majority from calling for a vote.” No longer.
Peter Hanson writes in his chapter “Ending the Omnibus: Restoring Regular Order in Congressional Appropriations” in the recently published volume Is Congress Broken? The Virtues and Defects of Partisanship and Gridlock that avoiding filibusters is a key reason, among others, why the regular appropriation process has increasingly become a thing of the past. Instead of committees deliberating about funding in their particular policy areas and producing discrete and tailored appropriation bills, the Congress, as it is in the process of doing this week, produces massive catch-all spending bills and continuing resolutions that virtually everyone agrees produce waste and inefficiencies in how government monies are spent. According to Hanson’s research, senators “prefer to follow regular order when they adopt appropriations bills, and they only abandon it when runaway amending and filibusters threaten to impose unacceptable political costs on them.”
In the aftermath of his decision to preclude the use of the filibuster to block the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Majority Leader Mitch McConnell has made it clear that he has no intention of widening the prohibition. His supporters may suggest that, in taking that position, the senator is protecting long-standing traditions and mores of the upper house. But, while conservatives as conservatives might want to think doubly hard before upending any tradition with such a lengthy history, the key point to keep in mind is that traditions are meant to support underlying laws and principles of conduct—not themselves become the law. When traditions become so hard and fast that their adherence actually frustrates the original point of their adoption, then it’s time to rethink their utility.
Gary Schmitt is director of AEI’s Program on American Citizenship.
Tags: Constitution, Filibuster, Separation of Powers, Trump
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