The question before the House is, should Republicans eliminate the filibuster?

In fact, the question is before the Senate; the House of Representatives doesn’t have a filibuster rule.

The question is being asked sometimes out loud, sometimes only sotto voce. At a recent gathering in Washington of serious Republicans and conservatives, Rep. Chip Roy (R-TX) said the issue should be discussed and was being discussed. He also said many people—perhaps most—haven’t yet made up their minds. This is despite the current discord between the parties and Democrats’ hostility to everything Trump.

There are several considerations, perhaps the most important of which is that we know—everyone knows, everyone!—that the Democrats will abolish the rule the next time they control the Senate. They would have abolished it last year, when they had a small majority, but two Democrat senators (Manchin from West Virginia and Sinema from Arizona) refused to go along. Those two are gone now, and no one, not even Charlie Brown, believes that Democrats, when they are next in the majority in the Senate, won’t finally abolish it.

So what should the Republicans do now?

The Senate, like the House, originally allowed a “previous question” motion, which could end debate and force a vote, allowing the majority to pass legislation over any objections of the party in the minority.

But in 1806, Vice President Aaron Burr, arguing that the Senate was too rule-heavy, suggested eliminating the motion. The Senate complied, unintentionally creating a situation in which no formal mechanism existed to end debate. That meant senators could speak indefinitely, effectively blocking legislation, though the practice wasn’t used strategically at first.

Senators began using extended debate more strategically to delay or block legislation, particularly controversial bills like those related to slavery.

During World War I, a group of senators blocked a bill to arm merchant ships. Outraged, President Woodrow Wilson demanded reform. The Senate adopted Rule XXII, allowing cloture to end debate, but only with a two-thirds majority of senators present and voting. This was the first formal check on the filibuster.

Frustrated by increasing gridlock, the Senate changed Rule XXII to allow cloture with three-fifths of all senators instead of two-thirds of those present. This created the modern 60-vote threshold used to end most filibusters.

In 2013, Democrats, using the so-called “nuclear option,” eliminated the 60-vote requirement for executive branch and lower federal court nominees. In 2017, Republicans responded—of course!—by eliminating it for Supreme Court nominees. And that’s where we are today: only legislation still generally requires 60 votes to overcome a filibuster.

In 2020, President Obama called the filibuster “a Jim Crow relic.” Senator Elizabeth Warren said it “has deep roots in racism, and it should not be permitted to … create a veto for the minority.”

Sen. Mitch McConnell (R-KY) said the filibuster “has no racial history at all. None. There’s no dispute among historians about that.”

Sen. Joe Manchin (D-WV) said, “The filibuster is a critical tool to protecting [small states] and our democratic form of government.” And Sen. Robert Byrd (D-WV) said back in the 1990s, the Senate “should be a true deliberative body—a forum in which to slow the passions of the House.”

And so today the U.S. is the only Western nation that allows a minority to block legislation favored by the majority. That may not be reason enough to scrap the filibuster, but it suggests that the procedure is not essential to representative democracy. Whether it’s essential to the best government is another matter.

So, where should we go from here? Given that the filibuster is no longer seen as a central or defining part of democratic procedure in the US—i.e., that it lacks bipartisan support—there seems to be little reason for one party to tie its own hands when it is perfectly obvious that the other party will not.

Politics seems unusually fractious in the U.S. today, but perhaps only to those who haven’t studied American history. However, there is a sense, at least among Republicans, that the actions likely to be taken by the Democrats the next time they have a majority could fundamentally change the country in ways impossible to alter.

The Democrats have already talked about packing the Supreme Court. They have talked about making Puerto Rico and the District of Columbia states, which would make it extremely difficult for Republicans ever to win subsequent national elections. They would probably repeal any voter ID laws passed by Republicans, which would allow hundreds of thousands—or even millions—of illegal immigrants to vote. That, after all, was the whole point of letting them in. The Democrats would certainly enact “gun control” laws, eviscerating the Second Amendment. And they would almost certainly enact airy-fairy, paralyzing climate control legislation.

Without a filibuster, Republicans could pass legislation that could restore America, and perhaps sufficiently to change the minds of enough Democrats to reshape the party from what it is now (a hardcore left-wing, ever-more progressive—many would say “crazy”—party) to a more moderate and sensible party.

And then, perhaps, someday after that happened, the senators could bring back the filibuster. Which is a useful tool, but perhaps only for a country in which the different factions are not as hostile as they are in today’s America.

Daniel Oliver is Chairman Emeritus of the Board of the Education and Research Institute and a Director of the Pacific Research Institute for Public Policy in San Francisco. In addition to serving as Chairman of the Federal Trade Commission under President Reagan, he was Executive Editor and subsequently Chairman of the Board of William F. Buckley Jr.’s National Review.

Email Daniel Oliver at Daniel.Oliver@TheCandidAmerican.com.