A quick take on Trump's push to end the filibuster

The "principled" opposition to majority rule has its limits

The New York Times reports that the president encouraged Senate Republicans to use their “‘TRUMP CARD,’ and get rid of the longstanding rule that means most Senate legislation needs 60 votes to pass rather than a simple majority.” For what it’s worth, Senate Majority Leader John Thune maintains he has no intention of doing this.

The erosion of a longstanding custom
As this space and many other commentators have noted, in recent years both sides have worked to erode the custom of requiring 60 votes in the area of nominee confirmations, both executive and judiciary. There has been relatively little erosion when it comes to legislation.

Of course the simple majority reconciliation procedures available for certain types of bills have been exploited to the maximum (see the big, beautiful bill) — by both parties. Which might suggest the principled opposition to majority rule in the Senate has its limits.

The most significant recent development was this year’s Republican effort to expedite the nomination confirmation process by allowing multiple nominees to move through the Senate at one time with only a bare majority. Previously the minority party could insist each be considered individually, which would have the effect of tying up the Senate for weeks or more leaving no time for anything else.

Is the filibuster worth preserving?
Most Democrats thought not just three short years ago when all but two voted to end it for legislation. Of course now Democrats depend on the filibuster for leverage on legislation. So, the old adage “where you stand depends on where you sit” clearly applies.

The filibuster generally had a bad name in the middle decades of the 20th century and was employed sparingly. This was because it was used frequently by southern senators protecting the Old South’s apartheid system from civil rights legislation. In those days other controversial legislation was normally not held up, even when the majority for passage was slim.

But delaying tactics of all kinds began to lose their stigma in the 1970s (after legal segregation was ended), when senators not only began insisting on the 60 vote “requirement” but also would sometimes offer amendments ad nauseam — hundreds even — in order to gum up the works. Leadership would throw up its hands and move on to other matters. Eventually as a matter of custom 60 votes became almost a de facto rule for legislation and nominations, although notably the Senate would abide by the decision of a simple majority on some controversial matters. Case in point: Clarence Thomas made it onto the Supreme Court in the early ‘90s with only 52 votes.

Can the filibuster be justified in a democracy?
The filibuster obviously thwarts majority rule in the Senate. But senators of both parties, not just the minority, hold dear to the custom because it allows every senator to hold up legislation for a long period of time in order to get his or her concerns heard and maybe incorporated into a forthcoming bill. Is that individual desire justification enough? Maybe not.

The best argument is a bit abstract and could be viewed as a relic of 18th century thinking. At its core is the idea that the Senate embodies the equality of the states in the federal system. If one accepts that premise, then it makes sense that the Senate has rules and customs that enshrine the power of individual senators to stand up for their states against what might be an overweening majority.

Looking ahead
At the end of the day these disputes are invariably resolved in view of political realities. And the politics, as has been argued here, militate strongly in favor of Republicans sooner or later jettisoning the 60 vote custom on legislation.

The undemocratic nature of Senate representation gives Republicans a clear advantage in maintaining their majority, today and going forward. Red states number 24, blue states 19. Today Democrats have zero red state senators and Republicans just one blue state senator. In the purple states it’s currently 10-4 Democratic.

In 2026 Democrats have a shot at the one blue state Republican (Susan Collins) and are long shots at best in the contested red states. In those elections Democrats are more likely to lose than gain in the purple state races — both Michigan (open seat with Peters retirement) and especially Georgia (Ossoff) look dicey. The hard truth for Democrats is that they are lucky to be as close as they are, and the future prospects are dim.

So, as a political question, Republicans are in a good position to end the filibuster given that they are not likely to be in the minority for many years. Trump’s prodding can only make that outcome more likely.