As the only Republican senator who voted to convict Donald Trump at both impeachment trials, Sen. Mitt Romney (R-Utah) has standing to make principled arguments about partisanship and rising above it, about the rule of law and respecting it and about speaking truth to power.
So, when Romney wrote a Washington Post op-ed, which ran in Monday’s edition, defending the Senate filibuster rule, I tried to read it with respect.
But I disagree.
The Constitution requires supermajorities for a few specified actions. It takes a two-thirds vote in the Senate (and only the Senate, the House has no power in this area) to ratify a treaty. It takes a two-thirds vote in both houses to refer a proposed constitutional amendment to the states (which then requires three-fourths of all states to ratify).
And, existing Senate rules require a three-fifths vote to cut off debate and force a vote. In modern times, filibusters have little or nothing to do with ending “debate.” Filibusters are all about blocking a final vote to pass (or defeat) a bill. Everyone knows this, and the concept of needing a filibuster rule in order to ensure full debate should not be invoked by any filibuster defenders.
To his credit, Romney does not, in his Post op-ed, invoke the rubbish that the filibuster exists to ensure full debate. Instead, he invokes a different flavor of rubbish, by saying that the filibuster is necessary to protect government by “consensus.”
Wow. That’s a whole new brand of rubbish. We should govern by “consensus.” To me, “consensus” means unanimity or near unanimity. It’s hard to imagine that 60 votes to end a filibuster, out of a 100, would represent consensus.
But let’s not get overly semantic. The fact is, Romney or whoever ghost-wrote that op-ed for him could not possibly think that anything that gets 60 votes in the Senate (it used to take 67 votes, by the way, to invoke cloture and force a final Senate vote on a piece of legislation) represents consensus, especially if you consider the deep malapportionment built into the Senate in which California (2020 population 39 million) and Wyoming (580 thousand) have equal weight (two votes in the Senate for each). So the 20 senators from the ten smallest states, if they happened to vote the same way, represent fewer than 10 million Americans, while California’s two senators alone represent 40 million Americans.
Of course, the built-in malapportionment of the Senate is a deeply, deeply undemocratic feature of our system (and, by the way, the only feature of the Constitution that the Constitution itself says can never be changed). The particular current makeup makes this an advantage to Republicans generally, because the lineup of the most populous states is dominated by blue-leaning states and the five smallest-population states are made up of four red states.
I’ll give Romney, whose own state of Utah benefits from the malapportionment of Senate power (although it is not among the ten smallest) would obviously lose power if Senate seats were based on population, the last word, with the warning that:
The power given to the minority and the resulting requirement for political consensus are among the Senate’s defining features.