Here is my column today in the Pittsburgh Post-Gazette.

Bruce Ledewitz: The one thing the Senate Democrats must not do

Special to the Post-Gazette

Dec 2, 2024

12:00 AM

I am proud of my party — the Democratic Party. When we lose a presidential election, we admit it and figure out how to win next time. We do not undermine constitutional democracy by lying about the result, claiming the election was stolen.

But I am worried that my party is preparing to undermine constitutional government in another way — by abusing the filibuster to oppose any legislative initiative Donald Trump proposes after he assumes office.

The frustrating filibuster

The Republican Party controls both the presidency and the Congress. In theory, that means the Republicans should be able to enact any policies they think best for the country, as long as they are constitutional.

But the filibuster in the Senate allows a minority to frustrate that process by requiring a super-majority of 60 votes to end debate on a bill and allow it to be voted on. Over the years, the reach of the filibuster has been reduced.

It no longer applies to confirmations or a range of taxing and spending issues. But it still can be used to block legislation in many areas. If every Republican Senator voted for a bill, that would only be 53 votes.

Recently, both political parties have been abusing the filibuster. If justified at all, the filibuster is supposed to protect minority interests from a dramatic change in policy unless that change has very widespread support.

But if the filibuster is used routinely to block ordinary legislation that a political minority merely disagrees with, the constitutional structure of majority rule in the Senate has been upended.

The Constitution protects minority interests in a variety of ways, including the representation of states in the Senate. Nevertheless, the constitutional framework is constructed to allow a majority to enact legislation favored by the people. The people, not a Senate minority, should decide what the law should be.

Democrats should reject the lure of resistance to Trump at all costs. And, if the Democrats do use the filibuster to obstruct everything Republicans try to do, the Republicans should get rid of the filibuster once and for all.

Demoralizing gridlock

There are several reasons why the Democrats should use the filibuster only sparingly — to try to block legislation that Republicans promised not to enact during the election.

For example, if despite Trump’s protests to the contrary, a nationwide abortion ban is proposed, Democrats would be justified in invoking a filibuster. But not to block legislation that Republicans can plausibly claim the electorate has now endorsed.

First, democracy can absorb bad policies. After all, any such policies can be reversed by the next election. But nothing demoralizes the electorate like government gridlock. Gridlock is the only thing a filibuster can do. That is why the filibuster should only be used as a last resort, not as a continuing tool of electoral competition.

Even if elections produce bad results, that very consequence will motivate voters in a healthy way. But if elections produce no results, then why should citizens care about, and participate in, public life?

Second, while the 2024 election result did not constitute any kind of mandate, there are certainly policies, or at least policy areas, that the voters clearly expect to be addressed. It can come as no surprise, for instance, that Trump wants his 2017 tax cuts to be made permanent and that he is reportedly considering cuts or restrictions in Medicaid to pay for those cuts.

Elections are supposed to have consequences. So, if the voters have given the Republicans the votes to enact policies like that, it would actually be undemocratic to frustrate those policies through filibusters. Better to oppose them and then, in the next election, run against them.

Finally, Democrats should let Republicans enact their policies because there is a serious disagreement about what effect these policies will have.

Democrats believe that Trump is proposing policies that will have bad effects on the country, especially his proposed mass deportations, tax cuts and universal tariffs. While these policies may not all require legislation, undoubtedly there will be related legislative proposals in the Senate.

How can the electorate decide whether Trump is a prophet or a blowhard unless his policies are given a chance? I have no doubt that two years of Trump will show the voters that his promises are false.

Trump’s failures will represent the first step in restoring Democrats to power.

Non-cooperating Republicans

When Barack Obama was elected President, Senate Republican leader Mitch McConnell said that the most important thing to do was to make sure that Obama was a one-term President.

Though he talked about cooperation, the way that McConnell sought to do that was resistance to most things Obama tried to do.

McConnell would probably insist that turned out to be a good political strategy. It is not clear that it was a good strategy. It did not prevent Obama from serving two-terms. It did not prevent Obama from becoming very popular.

But whether it worked or not, it was bad for the country. I don’t want the Democratic Party to make that same mistake.

Bruce Ledewitz is a professor of law at the Thomas R. Kline School of Law of Duquesne University. His previous article was “How the Democratic party must change to win in 2028.” The views expressed do not represent those of Duquesne University.

First Published: December 2, 2024, 12:00 a.m.