My column today in the Pittsburgh Post-Gazette.

Bruce Ledewitz: Republicans, get rid of the filibuster but force Trump to act legally

Special to the Post-Gazette

Mar 24, 2025

4:00 AM

We have just witnessed the absurd spectacle of Democrats in the U.S. Senate conducting an unjustified filibuster against a Republican appropriations bill and then, when that filibuster threatened to shut down the government, providing the votes needed to end it. It’s time to get rid of the filibuster.

The reason: It would allow Republicans (if they could bring themselves to do so) to force Donald Trump to govern legally and it would reduce the president’s temptation to presidential government rather than Congressional government.

Filibuster abuse

The media endlessly repeated that 60 votes were needed to pass the appropriations bill. But why? It only ever takes 51 votes to pass a bill in the Senate. The Republican caucus has 53 members. Why couldn’t the Republicans just pass this legislation?

The reason 60 votes were needed is that Democratic senators filibustered the bill. By Senate rule, that requires 60 votes to invoke cloture to end debate and bring a bill to a vote on the floor.

The appropriations debacle was just the most recent abuse of the filibuster. Once rarely invoked, the filibuster was traditionally justified as a way for a Senate minority to require a supermajority vote, which would almost always be bipartisan, before a major change in American life is passed into law by the Senate.

It was regarded as a fundamental check on a Senate majority. Think “Mr. Smith Goes to Washington.”

This justification was always suspect because historically, the filibuster’s major use was to block civil rights legislation and not much else. It was not until 1964 that the Senate was able to overcome a filibuster and pass a major civil rights law.

But now, in our current, hyperpartisan world, both parties use the filibuster routinely to stymie any policy favored by the other Party. The filibuster is invoked to prevent passage of ordinary legislation as just another partisan tool.

This overuse of the filibuster turns the Senate into a roadblock, contradicting the structure of government the framers of the Constitution envisioned. The framers knew how to require a supermajority — it takes a 2/3’s vote in the Senate to ratify a treaty for example.

There is no supermajority requirement in the Constitution for ordinary legislation.

The appropriations bill was a perfect example of filibuster abuse. It was a series of spending authorizations that keeps the government funded until the end of September and prevents a partial government shutdown.

Democrats had legitimate disagreements with the bill, but no one could maintain that it represented a major change in American life. If you could filibuster this bill, you could justify a filibuster for any proposed bill.

The way to bipartisan compromise

That is how both parties now use the filibuster. Fortunately, the filibuster can be eliminated by a simple majority vote and this has already been done in many important policy arenas.

Confirmation votes are no longer subject to a filibuster. Neither was last attempt to repeal Obamacare. The 2017 tax cuts were passed by simple majority vote.

But a lot of proposed legislation is still subject to a filibuster threat. It would be a simple thing to finish the process of restricting the filibuster and get rid of it altogether.

Eliminating the filibuster now would have the added advantage of ending much of the constitutional crisis that the actions of the Trump administration have sparked. The massive downsizing of government that President Trump is attempting is arguably unlawful under current law. And it may well be stymied in the courts after years of litigation.

But there is a current Republican congressional majority that supports Trump’s agenda. Republicans believe that the American people voted for these changes. If so, Republicans should enact the needed legislation under which Trump could pursue these policies lawfully. But to do that, you would have to end the filibuster.

Trump’s election reflected popular dissatisfaction with the status quo. The only way to overcome that popular frustration is with a government that works. Of course, it would be better if the two major political parties worked together and compromised so that the threshold of 60 votes in the Senate would generally be reached.

But, as everyone knows, that is not happening. The two parties overwhelmingly vote as blocs and neither party consistently wins the 60 votes needed in the Senate to end a filibuster.

In an era of polarization in congressional voting, the only way government can work is to allow majorities in Congress to actually govern the country. That is how the system was originally designed.

After the filibuster is gone, there will still be pressure to promote bipartisan compromise. Often, Congress and the presidency will be held by different parties. Also, the American people often split the majority control of the two houses of Congress.

Congress should rule

But when, as now, one Party has the votes to govern, that Party’s agenda should control. If the voters don’t like it, they can always change it in two years.

One additional reason to eliminate the filibuster is that congressional deadlock invites presidential government. In conducting much of the nation’s business by himself, Trump is merely enlarging a playbook written by previous presidents.

But the Constitution envisions Congress, not the president, as the chief source of policy. That can only happen when the filibuster is eliminated. The Republican majority should do exactly that.

Bruce Ledewitz is a professor of law at the Thomas R. Kline School of Law of Duquesne University. His previous article was “The Supreme Court will step up and Trump will back down.” He writes every other Monday. The views expressed do not represent those of Duquesne University.

First Published: March 24, 2025, 4:00 a.m.