Trump can't predict the future of the filibuster
(Editor's Note: This piece first appeared in the Washington Examiner on August 28, 2017.)
Last week, President Trump called on Senate Republicans to nuke the filibuster, predicting the chamber's Democrats would not hesitate to do so in the future if their roles were reversed.
While Trump's assertion was intended to goad Republicans into action, it is based on speculation and should thus be viewed with skepticism. Just like in the real world, accurately predicting what will happen in some theoretical future Senate isn't that easy.
Admittedly, Senate Democrats utilized the so-called nuclear option in 2013 to end a Republican filibuster of one of President Barack Obama's judicial nominees. But that fact does not make it inevitable they would succeed in nuking the legislative filibuster in the future. While it is true that a party's past actions provide an idea of how its members may behave in the future, there are many other complicating factors that might make it harder for Democrats to go nuclear.
For starters, the political environment of tomorrow matters. It will inevitably shape how senators view the filibuster. The president could easily address this by qualifying his prediction with language such as, "if there were any political benefit whatsoever in doing so," or "when it feels the mood." However, such language is not a sufficient substitute for a detailed analysis of the polarization and partisanship likely to characterize the Senate's broader environment in the future. To be persuasive, such forecasts should address factors like the geographic distribution of majority-held Senate seats (e.g., red-state senators versus blue-state senators), presidential approval and behavior, public opinion on the filibuster, and overall levels of congressional productivity.
For example, red-state Democrats may be less likely to support the nuclear option in the future to empower a liberal president if doing so makes it more likely that policy outcomes opposed by their constituents will prevail. Presidential popularity may also impact the ability of party leaders to corral the votes needed to go nuclear. In addition, public opinion on the filibuster and growing concern over an imperial presidency, in both parties, may deter senators from supporting the nuclear option. Finally, more general levels of congressional productivity may undermine arguments that obstruction is excessive or that the filibuster prevents the majority from enacting its agenda.
Trump also overlooks the ability of Senate minorities to influence whether the majority decides to go nuclear in the first place. This is a common mistake. The conventional wisdom suggests the minority's ability to obstruct depends on the majority's willingness to tolerate obstruction. That is, minority obstruction inevitably begets majority restriction via the nuclear option.
While such an explanation correctly emphasizes the contingent nature of procedural politics, it limits our ability to grasp fully the complex relationship between partisan conflict and procedural change in the modern Senate. Senate majorities have always had the ability to determine the institution's rules. Yet while technically possible, changing those rules via the nuclear option has rarely been successful. This is because a minority may deter otherwise-willing majorities from nuking the filibuster if it is willing to do so. Minorities can, for example, deter the majority from going nuclear by threatening retaliation if their rights are restricted.
The implication of this is that procedural change in the Senate via the nuclear option depends on the nature of the minority's response, or threatened response, to the majority's efforts. A credible threat to retaliate made by the minority party links the majority's efforts to go nuclear with suboptimal outcomes for senators in the majority party. The expectation of increased costs is sufficient to deter majority party senators from supporting the nuclear option to the extent that the minority's retaliatory threats persuade them that it would be more difficult to achieve their individual goals in a post-nuclear Senate.
This dynamic can be observed by juxtaposing the 2005 legislative battle, in which the Republican majority tried and failed to eliminate the filibuster for judicial nominations, to a similar battle in 2013, in which the Democratic majority successfully went nuclear. In 2005, Democrats credibly threatened significant retaliation if Republicans followed through with their efforts to eliminate the filibuster. In that instance, the minority's threats were sufficient to eventually deter seven Republicans from supporting their party's efforts to go nuclear.
In contrast, enough Republicans repeatedly relented at the last minute in filibustering several of Obama's executive nominations in 2013, in the face of threats from the Democratic majority to use the nuclear option to overcome their obstruction. At the time, the majority could easily engage in such aggressive behavior to pressure these Republicans to break ranks because the broader Republican Party failed to threaten significant retaliation in response.
Viewed from this perspective, repeated cooperation in the face of the majority's threats to go nuclear paradoxically reinforces such behavior and makes it more likely that Senate majorities will threaten to go nuclear in the future to overcome minority obstruction. In contrast, retaliatory threats that are clearly articulated and credible reduce the likelihood that the majority will have the votes to go nuclear when its members are confronted with minority obstruction.
Trump is right in one respect. Democrats may try to nuke the filibuster in the future. But he is wrong to suggest that Republicans do not have a say in whether they will be successful.