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Time to End the Filibuster?

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.