When the 114th Congress starts in January, Harry Reid will find himself in an uncomfortable position: the minority. Along with this demotion, Reid will have to decide whether Democrats should use the filibuster to block GOP legislation, just as Senate Republicans have over the past six years. The answer says a lot about the dysfunctional politics in the upper chamber.
Obstruction, while destructive for policymaking, has been good politics for the Republicans. Future Majority Leader Mitch McConnell has successfully blocked bill after bill—and avoided giving Democrats victories on them—by using the filibuster. For a time, McConnell also stopped the president from appointing many Democratic nominees—leaving judicial posts empty and kneecapping agencies like the Consumer Financial Protection Bureau and National Labor Relations Board, which had to operate without leaders or members.
The blocking of nominees ended last November, when Democrats invoked the “nuclear option”—they changed the rules of the Senate to eliminate filibusters for all executive branch and judicial nominees. (They left an exception for Supreme Court justices.) But don’t expect Reid to use the filibuster any less than Republicans have. Reid has a history of supporting the filibuster when in the minority and criticizing it when in the majority. There’s no reason to expect that to change with McConnell as majority leader.
And that’s a good thing. If Republicans are going to reap the political benefits of indiscriminant filibustering, then Democrats should do so as well. The advantage of filibustering is that it allows a party to block progress without taking all of the blame for it, for the simple reason that most of the public—and, surprisingly, most of the media—don’t realize that filibusters are basically thwarting majority rule. Presidential vetoes, on the other hand, are easy for the public and media to understand and easy to appropriate blame. If Democrats relinquished the tool now, they’d give up a chance to make the same sort of gains. It’d be the equivalent of unilateral disarmament.
Giving up the filibuster now would also allow Republicans to falsely claim that they—and not the Democrats—can govern. This would be backwards: Democrats would be allowing the Senate to work by not using the filibuster, unlike the GOP, which did the opposite. But good luck getting political pundits and voters to understand that. Instead, they would see a Democratic senate that couldn’t pass legislation and a Republican one that could.
This doesn’t mean that Democrats should—or will—filibuster every piece of legislation. With around 54 senators (exact count unknown as of publication), Republicans may not be able to pass bills even without the 60-vote threshold. You’ll have senators like Kelly Ayotte looking to bolster her moderate credentials in preparation for a tough reelection fight in 2016 while Ted Cruz tries to show how conservative he is. In those situations, Democrats should force McConnell to prove he can hold his party together—and govern—even without a filibuster. They just shouldn’t give him that free reign all the time.
Correction: This article originally stated that Susan Collins is up for reelection in 2016. It's Kelly Ayotte.