Congressional Republicans are understandably frustrated with their Democratic colleagues’ intransigence as the present government shutdown rolls on without an end in sight. Some, such as Rep. Chip Roy (R-TX), have even begun advocating for making fundamental changes to legislative procedure. Last week, he urged his counterparts in the Senate to invoke the “nuclear option” and end the filibuster to pass a government funding bill.
But doing so would be a terrible mistake. As I have argued elsewhere in the past, the filibuster is an essential aspect of our constitutional structure. The framers intended the Senate to represent the enduring interests of the several states, not the mere whims of temporary political majorities. However vexing the procedure is, it ensures that our representative democracy remains truly deliberative. Conservatives, of all people, should be the filibuster’s most enthusiastic defenders.
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Roy is right about one thing: Congress is a broken system. The shutdown is just the latest evidence of this. For years now, the body has been seemingly incapable of performing many of its basic legislative duties, instead ceding power to the executive branch and administrative state. As a result, Congress’s approval rating is in the toilet — only 15% according to the latest numbers from Gallup. Nevertheless, undoing the Senate’s distinctive features would not restore its status as the “world’s greatest deliberative body.” In fact, it would coarsen our politics even further.
Unlike the House of Representatives, the Senate is not a fundamentally majoritarian body. In fact, it was created as a check against majoritarian tyranny. “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part,” Publius wrote in Federalist 51. James Madison especially understood that the Senate would be a “necessary fence” against the “fickleness and passion” of the majorities represented in the House.
That is why individual senators have so much more power than individual representatives. By giving a minority of senators, or even just one, the ability to hold open debate and therefore block legislation, the framers intended to give additional representation to the small states and minority interests that get lost in the rough-and-tumble of the House. Progressives, of course, have typically denounced this measure as “undemocratic,” but really it is a consequence of the Founders’ concern for liberty and the common good.
Beyond the protection of minority rights and interests, though, the filibuster also protects the distinctly deliberative nature of Congress. The Framers divided legislative power between two chambers of Congress precisely so that debates could take place slowly and ultimately resolve in consensus rather than division. In polarized times such as our own, it can be difficult to imagine that kind of agreement emerging at all. But it remains the case that the few laws that actually do pass first gain meaningful bipartisan support.
Congressional dysfunction is less the consequence of the rules then, and the hyperpartisan atmosphere of American politics. The American Enterprise Institute’s Yuval Levin has convincingly argued that “Congress is weak because its members want it to be.” Members are too eager to maintain their offices through a kind of partisan kabuki theater act in which they seem to be “fighting the other side” while accomplishing nothing of real note.
Conservatives such as Roy often posture like they understand this problem and want to fix it. He is the principal sponsor, for instance, of the “Make DOGE Permanent Act,” which would give Congress greater oversight of the administrative state and claw back power for the federal legislature. But by advocating rules changes that would fundamentally alter the structure of Congress, Roy and other Republicans pushing for an end to the filibuster seem to misunderstand the role of Congress in the first place.
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The good news is that Republicans in the Senate are unlikely to end the filibuster — for now. Majority Leader John Thune (R-SD) said earlier this month that he questioned the prudence of eliminating the measure because he worries that a more majoritarian Senate would be abused by Democrats if they regained power. Thune is absolutely right, and his colleagues in the House would be smart to heed his warning and lay off on their pressure campaign.
Giving up congressional power for a temporary partisan victory would be profoundly shortsighted. Proposals to end the filibuster were wrong when Democrats made them in the Biden years, and they are still wrong when Republicans make them in the Trump years. We should not put our faith in the ephemeral strength of passing majorities, but rather the enduring wisdom of the Founders’ Constitution.
Michael Lucchese is the founder of Pipe Creek Consulting, an associate editor of Law & Liberty, and a contributing editor to Providence.