The filibuster is under attack yet again

Vice President Kamala Harris just announced that she wants to abolish the Senate filibuster to fast-track legislation to reinstate national Roe v. Wade rules on abortion.

No matter who takes the White House or the Senate, the filibuster should remain to allow for extended debate. The procedure forces the majority party to listen to the minority party, and to back-bench members of its own party.

The filibuster is a procedure, not a policy. It serves an important purpose to lengthen debate and to slow legislation in a way that forces the parties to compromise and come to agreement on controversial issues.

The debate over the filibuster is coming up again because Democrats are confident that they can take the White House and secure a working majority on abortion issues in the Senate. Democrats think they can get to 51 votes on legislation to codify Roe, but they would fall short of the 60 needed to shut off debate.

That same position would likely be adopted by Republicans if former President Donald Trump wins and the GOP picks up enough Senate seats to give them a working pro-life majority, enabling them to move forward legislation limiting abortion.

But controversial legislation should not be railroaded through Congress on party-line votes.

There are great examples of filibusters by both parties. My former boss, Sen. Rand Paul (R-Ky.), engaged in a filibuster back in 2013 and commenced his speech by saying “I will speak until I can no longer speak.” Thirteen hours later, when he had made his case that drone strikes on U.S. territory on American citizens should never happen, it ended. It was one of the true shining moments in the history of the Senate, and the best example of statesmanship we have witnessed in Congress in the last 20 years.

Democrats have also used the filibuster when they deem it necessary. Sen. Chris Murphy (D-Conn.) used one back in 2016 to push for gun control. Sen. Ted Kennedy (D-Mass.) filibustered a Food and Drug Administration reform bill in 1997 because he thought it went too far. The most famous filibuster is a mythical one that Americans see in “Mr. Smith Goes to Washington,” where actor Jimmy Stewart speaks until he collapses, truthfully maintaining his innocence against charges of corruption.

The filibuster is central to the identity of the Senate and should remain in place. The Senate was set up to represent the will of the states and to balance against the will of the people as represented in the House. Senators represent the idea that we are a democratic republic with powers reserved to the states. That is why we have an Electoral College that balances power between the sovereign rights of a state and the population of a state.

The filibuster represents the idea that individual members of the Senate have the power to engage in extended debate when they oppose legislation. It merely extends debate. A slow consideration of legislation is a core function of the Senate, and speedy passage of a bill often leads to cronyism and back-room deals.

And if ever there was an issue meriting long, extended debate, it is the issue of federal abortion policy.

The filibuster is fundamental to the identity of the Senate, and it would be a tragedy if it were eradicated. According to the Senate Historical Office, “George Washington is said to have told Jefferson that the framers had created the Senate to ‘cool’ House legislation just as a saucer was used to cool hot tea.”

As I wrote for the Heritage Foundation in 2011, “the filibuster in the Senate protects the rights of Senators to debate and amend legislation, thereby protecting the interest of the American people. The filibuster actually realizes the Founders’ intent that the Senate slow the legislative process ‘to ensure due deliberation and inquiry’ before passing a bill.” The push to rid the Senate of the filibuster will be destructive to the institution and to the idea that Congress should deliberate before passing laws.

It is possible to end debate without getting rid of the filibuster. Nothing prevents a majority leader from filing cloture (a petition to end debate) on a piece of legislation repeatedly until senators provide 60 votes to end debate. Some may vote to end debate but then vote to oppose the legislation, giving the majority the votes they need to pass the bill.

Senators should back away from any attempt to change the rules that would abolish the filibuster and destroy the long tradition of extended debate that makes the Senate unique and valuable to our republic.

Brian Darling is former counsel for Sen. Rand Paul.