By DAVID B. RIVKIN JR. and LEE A. CASEY, March 23, 2015 7:31 p.m. ET
The Obama administration has systematically targeted critical congressional powers, including the authority to enact laws. It has rewritten such statutes as the Affordable Care Act, the Controlled Substances Act and the Immigration and Nationality Act. And it has effectively blocked Congress’s “power of the purse”—eviscerating authorities essential to maintain the balance of power between the legislative and executive branches of the federal government.
The recent standoff over the Department of Homeland Security appropriations bill is only the latest effort by President Obama to thwart Congress’s constitutional authority to limit the president’s use of federal funds to approved purposes. The administration’s basic position is that it is entitled to get its way on all of its spending requests. Any effort to impose budget caps or appropriations riders—all traditional congressional mechanisms—is illegitimate and the cause for the government shutdown, for which Congress is to blame.
By striking at Congress’s constitutional powers, particularly the power of the purse, Mr. Obama seeks an unprecedented aggrandizement of presidential power. One way to prevent that happening is by reforming the filibuster rule.
Spending battles and government shutdowns have taken place in the past. Yet the Obama administration’s strategy, denying the very legitimacy of Congress’s use of its appropriations power, is historically unprecedented. It has been abetted by Democratic senators who deploy the filibuster to keep spending legislation that the president opposes from an up-or-down Senate vote. Their goal is to spare the president any potential political damage from casting a veto, and to allow him to shift responsibility for government shutdowns from himself to Congress—undermining the paramount constitutional virtue of accountability. This situation has particularly vitiated the authority of the House of Representatives, which originates all of the spending bills.
The constitutional balance of power between the two political branches must be restored. In this connection, it is important to understand that the Senate filibuster rule has no constitutional basis. That document does not reference a “filibuster,” but merely permits each house of Congress to determine its own procedural rules. The filibuster is a historical fluke, resulting from the Senate’s failure to impose constraints on how long senators may speak on a particular matter, thereby delaying other business and especially votes on legislation that require only a majority to pass.
Only a cloture motion, which requires a supermajority of three-fifths (60) to pass, can end these delaying tactics—and cloture has become nearly impossible to achieve because of an increasingly ideologically divided Senate in which neither party has a supermajority.
This raises fundamental issues: Since all constitutional provisions must be read in harmony, rules in one house that consistently frustrate the ordinary legislative process by preventing a vote work to nullify other key congressional powers. Ultimately, this undermines the Constitution’s balance of power between Congress and the executive.
Despite the positive role the filibuster has played by delaying improvident legislation, it has become counterproductive. And the filibuster is no longer an untouchable Senate tradition. Last year, then-Majority Leader Harry Reid abolished the filibuster for most judicial and executive-branch appointments simply to help President Obama get controversial nominees confirmed—and did so in the middle of a Senate session, in violation of the rules. There is every reason to expect that similar political expediency will lead to future limitations on the filibuster when there is again a Democratic Senate majority—which should give comfort to any Republicans who continue to support the filibuster out of respect for Senate tradition.
Tradition is important, and eliminating the filibuster, despite its diminished policy utility, would be a momentous step. Yet it is one Senate Republicans should consider taking, given the constitutional imperatives at stake. One possibility is for the Senate to adopt rules limiting the time any particular matter can be debated before a vote, thereby removing the procedural gap that permitted filibustering in the first place. Another would be to reduce the number of votes needed to carry a cloture motion to a simple majority.
Whatever the means chosen, this strategy should be decoupled from any particular policy battle. It should be undertaken only at the beginning of the next congressional session, and with appropriate explanations of the reasons for the change: It is an essential measure so that Congress can begin to reassert itself against an executive branch that increasingly acknowledges no limits on its power; an executive branch that is even considering how the president himself can raise taxes.
If legislation commanding the support of majorities in both the House and Senate can no longer be permanently delayed by filibustering, a recalcitrant president would still be able to shut down a government agency or department by vetoing appropriations. But the American people would know whom to hold responsible.
Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.