The most notorious parliamentary procedural tactic of the last century, known colloquially as the "filibuster," looks to be in its death throes. The previous two presidents, Trump and Obama, both called for fundamentally weakening or ending the filibuster altogether. Depending on whether a given party is in the minority in the Senate, the filibuster is either the savior of democracy or tyranny of the minority. This means most Senators have taken contradictory positions on the filibuster depending on if it helped their political agenda at a given moment. So the question is what has the filibuster meant for immigration in the past and what could a "nuclear option" to weaken or end the filibuster mean for immigration policy?
The first thing to keep in mind is that the filibuster refers simply to any tactics intended to prolong consideration of any legislative question before the Senate. The true measure of a filibuster is intent as opposed to the action involved. For a true filibuster, the actions taken must be designed to indefinitely delay a vote for final passage (or confirmation of a nominee). While the tactic most associated with the filibuster is speaking continuously on the floor for hours and hours, that is simply one way to filibuster. Senators could make routine quorum calls, offer endless amendments, make points of order, appeal the rulings on those points of order, move to adjourn, along with assorted other parliamentary motions and tactics.
Now, keep in mind that all the tactics that, with proper intent, could be called a filibuster are also legitimate actions within a proper "regular order" Senate debate. For example, a Senator may really genuinely want to offer amendments because they think a bill needs to be improved. A Senator could give a long and passionate speech about legislation because they feel strongly about it and want to make a stand for their constituents and the country. The filibuster is simply using tools made available by the Senate rules for orderly and fair debate and using it to extend that debate indefinitely until the majority loses patience and drops the issue.
But the question is how do you determine intent? When is offering amendments to a bill or giving a long speech crossing the line from proper use of the rules to a filibuster designed to block the majority from working its will? In cynical Washington D.C. the answer has settled on essentially a partisan lens. When your party needs the filibuster to achieve their desired ends, then the tactics are sacrosanct. When the filibuster is an impediment to political progress, it is the tyranny of the minority.
There are far too many examples of rank partisanship connected to the filibuster debate to list all of them here. But I do want to provide some examples to demonstrate the unseriousness on display by most people involved in this debate. While we all know and have come to sadly expect blind partisanship from Senators and other elected officials, the press has also been involved in schizophrenic filibuster coverage. In 1995, during the Clinton presidency, the New York Times slammed the filibuster as Republican intransigence. HOWEVER, in 2005 with President George Bush in office and Senate Democrats were filibustering his judicial nominees the New York Times had a different perspective. The New York Times Editorial Board described their change of heart thusly:
"A decade ago, this page expressed support for tactics that would have gone even further than the "nuclear option" in eliminating the power of the filibuster. At the time, we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton's early agenda. But we were still wrong. To see the filibuster fully, it's obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide."
What a difference a decade makes, eh? Once Democrats were using the tactics to stop Republican political goals, then all the sudden the idea of protecting the minority of voters and reigning in the excesses of the majority was seen by the New York Times as worthy of protection. Ultimately, the Senate Republicans listened to the New York Times. They stood down on a nuclear option to end the filibuster.
While the Republicans listened to the New York Times Editorial Board, it seemed like they were the only ones that did. In 2012, during the Obama Administration, the Times again called for ending the filibuster. Magically, with President Obama being stymied by the filibuster the NYT again found the tactics dangerous and abominable. They wrote:
"This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution."
So as we track this narrative, the NYT in 2012 seems to have been cornered by history and has no choice but to oppose the filibuster altogether. Except the times (or Times), they were, of course, changing. In 2019, the Senate Republicans had reached the same conclusion as Senate Democrats in 2013 (and the New York Times circa 1995 and 2012), and made changes to eliminate options for filibuster. Oddly enough, the NYT was furious. They wrote:
"Senate Republicans this week adopted rule changes that could make the august upper chamber something like a miniature version of the raucous and deeply partisan House."
I know this seems like beating a dead horse, and for that I apologize. Suffice to say, under the new Democratic Biden Administration, the New York Times is, again, vociferously supporting ending the filibuster and thus supporting turning the Senate into "something like a miniature version of the raucous and deeply partisan House."
If you are still with me, and bless you if you are, the point of this dive is to demonstrate there is no real principle behind support or opposition to the filibuster. As the partisanship has increased, any opposition to the political majority is painted as illegitimate and thus any tactics employed are also deplorable. This is akin to "identity" tactics. Many now measure the legitimacy of an action solely on the identity of the person taking the action. Thus a filibuster is good if a Democrat uses it and bad if a Republican uses it and vice versa.
What then should immigration watchers make of the slow death of the filibuster? Has the existence of the filibuster helped or hurt in crafting a sensible immigration policy that helps the American people that the government is supposed to serve? Sorry to say that the results are somewhat mixed on this one.
In 2007, President George W. Bush wanted to provide amnesty in the United States (some say he's still trying for amnesty to this very day though people have long ago tuned him out). His 2007 amnesty bill failed because of a filibuster. In 2010, the Senate filibuster also successfully blocked the DREAM Act. The filibuster did not block the Secure Fence Act or the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. But on the other hand, the Obama Gang of Eight amnesty bill passed the Senate in 2013 handily. During the Trump Presidency the Democrats shut the government down to avoid paying for the wall. Most of President Trump's immigration agenda (the good and the bad) also was dead on arrival in the Senate due to Senate Democrats using a filibuster blockade.
Within the current status quo of hyperpartisanship, both sides have settled into World War I style trench warfare. As long as the filibuster persists it is highly unlikely that any good immigration policy ideas will receive a vote in the Senate. Those immigration ideas that can survive the gauntlet will necessarily be narrow and limited. Which means they would require a massive expenditure of political capital for a very limited policy gain.
But that also means bad immigration ideas, like amnesty, also have to survive the same gauntlet as good policy prescriptions. So it comes down to whether the hope of good ideas passing Congress is more likely than bad ideas becoming law. A more open Senate with a weakened or abolished filibuster will unequivocally pass more legislation over any period of time than a Senate with a filibuster. This means that most likely BOTH good and bad immigration ideas are more likely to pass sans the filibuster.
Therefore, we have to ask ourselves if this is an acceptable trade-off. Ending the filibuster would mean a bare majority of Senators could mandate E-Verify, build the wall, and make structural changes to legal immigration to reflect a merit-based approach and eliminate chain migration. However, it would also allow legislation to provide amnesty and naturalize millions of illegal aliens while welcoming millions more to the United States.
But also remember, a future Congress can repeal the laws passed by the other side. Without a filibuster, rapid and expansive policy shifts will occur routinely with each new election cycle (every two years). While this certainly will erode policy certainty for the population, it is especially relevant in the immigration policy context. While immigration policies like E-Verify are sorely needed to protect American workers, they are also what I would describe as "surface" policies. By that I mean they are easily repealed because their legislative roots, if you will, do not burrow deep into the policy soil. In other words, it would be easy, without much policy disruption, to repeal E-Verify at any time. On the other hand, once Congress provides amnesty and citizenship to illegal aliens that is final. De-naturalizing is next to impossible. And the prospect of instant amnesty at any time will serve as the most massive pull factor for millions seeking to enter the U.S. illegally.
In summary, the end of the filibuster offers the prospect of increasing the consequences of elections. Each election could serve to wipe the entire U.S. policy map clean. Within that turmoil good and bad policies will rise and fall with increased regularity. However, for immigration policy, the most destructive aspects, like amnesty, are final and forever. Over time, it seems likely the bad will override the good simply because of the nature of the policies in question. Given the debate around the filibuster is simply one of the value of the tool to a given side at a given time, it seems most likely that the filibuster tactics help resist permanent bad immigration policies more than ending it could ever help preserve good immigration policy. In the medical profession they use a latin phrase, Primum non nocere, which means "first, do no harm." This is a good maxim for those looking for sensible immigration policy. The filibuster, at bottom, is the best hope of first doing no harm.
JARED CULVER is a legal analyst for NumbersUSA
Updated: Mon, Jul 12th 2021 @ 11:50am EDT