Filibusters are not for shutdowns


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on January 26, 2018, 6:35 pm

The three-day shutdown is past, but the danger to democracy that it signifies is not.  Hardline Democrats are threatening another shutdown on February 8 if they don’t get what they want on immigration.

This threat, dependent on a Senate filibuster, is antithetical the ongoing operation of a competitive two-party democracy, where the parties take turns at being in power as determined by each election, and risks America’s further slide towards authoritarianism.

            The shutdown of 2013 is no excuse for a shutdown this year. 2013 involved divided government, with Democrats controlling the White House and Senate but Republicans holding the House.  Now Republicans have all three, with only the obstructionist tactic of a filibuster an option for the Democrats.

            To appreciate this difference, imagine two different two-seater airplanes.  The first plane has twin sets of controls, so that both co-pilots share the power of flying the plane.  The other plane has just one set of controls, so that it is clear that one seat is the pilot’s and the other is the passenger’s.  The 2013 shutdown was like the first plane crashing because the two co-pilots couldn’t agree on how to fly the plane.  In 2018, a filibuster-induced shutdown is like the second plane crashing when the passenger tries to grab the pilot’s controls because of disagreement with how the pilot wants to fly the plane. 

            Some might say that the filibuster is an instrument to give the second plane’s passenger some navigational authority.  Even so, it does not change the fundamental truth that – unlike in the first plane – the role of pilot and the role of passenger remain clearly distinct.  If push comes to shove, the single pilot gets to fly the plane, and the passenger must yield in disagreement.  The passenger does not get to crash the plane by trying to take over the role of pilot. 

            In a two-party democracy, the parties compete for turns as pilot and passenger.  For some flights, the Democrats will pilot the plane, because that’s what the voters want.  But for other flights, the Democrats must let the GOP have its turn in the pilot’s seat.  Sometimes, divided government causes both parties to be co-pilots for particular fights.  But when government is not divided, the situation reverts to that of pilot and passenger, with each party in the role that the voters for now  have assigned to it.

            The filibuster gives the passenger some input into each journey the plane will take.  If the pilot wants one destination and the passenger another, the two may need to compromise in order to get anywhere, given the passenger’s power to use the filibuster to block what the pilot wants to do.  But the passenger, recognizing that this particular flight is but one in the ongoing series of taking turns, must not use the filibuster to cause a crash that prevents or impairs the plane’s future flights.  A filibuster that causes the government to shut down, failing to pay its employees (or to default on the national debt), just because the filibustering party disagrees with the governing party over some issue of public policy – health care, the environment, immigration, or whatever – is tantamount to the passenger crashing the plane in disagreement with where the pilot wanted to go on a particular flight.

            Democrats might protest that protecting the Dreamers makes this filibuster-induced shutdown exceptional and essential. But protecting Dreamers is still an issue of policy: what direction the government should take in this particular flight.  However important, it does not permit the passenger to crash the plane. If this year Democrats cannot use the filibuster to convince Republicans to protect the Dreamers, they need to convince the electorate to put their party in the pilot’s seat.

            Moreover, if a Senate minority is allowed to shut down the government by filibuster, the voters will not tolerate America’s democracy much longer.  Even after putting one party in charge of both houses of Congress and the presidency, the voters find that Washington remains dysfunctional.  That’s a recipe for getting rid of the system altogether.

            Trump promised to fix Washington by blowing up the whole place if necessary.  Many are deeply troubled by Trump’s authoritarian tendencies.  But if electing Trump does not cure Washington’s dysfunction, the electorate’s next response may be Trump 2.0, and that would be even more authoritarian. 

            Thus, if the Democratic Party cares about small-d democracy, as it professes, then it needs to act consistently with the role of the minority in a competitive two-party system.  It needs to win elections, not shut down the government because it disagrees with the majority party over the direction the government currently should take.

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Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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