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Did the Supreme Court just tell the Senate to abolish the filibuster?

The Hill logo The Hill 05/07/2022 Stuart Shapiro, opinion contributor
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Last week, in West Virginia v EPA, the Supreme Court invoked the “major questions doctrine” in determining that the Clean Power Plan issued by the Obama administration was illegal. The major questions doctrine essentially says that for really big decisions, such as requiring shifting our sources of power in order to combat climate change, agency regulations are not sufficient. Congress must specifically legislate on these major questions.

Many have focused on the court’s ambiguous language regarding what qualifies as a major question. To some degree this misses an important point about policymaking in the current climate. The more “major” a question is, the less likely it is that Congress, as it is currently constituted, will be able to pass legislation on it. This is true regardless of how we define “major.”

For decades, Congress has delegated many policy decisions to the agencies of the executive branch like EPA. It does this for two reasons. First, Congress, much smaller in terms of staff and hence expertise than the executive branch, does not have the technical knowledge necessary to decide where to set standards for arsenic in our water, or whether a new vaccine is safe. The second reason, though, is that Congress would prefer the politically difficult decisions — ones that impose costs on individuals or businesses — be made by someone else. Congress can then get credit for solving a problem (cleaning up the air) and blame the agencies for imposing burdens (like requiring stringent emission standards) to solve that problem.

There is thus a reasonable argument, that on truly significant questions of policy, Congress should legislate and assume political responsibility for the results of that legislation. Congress is of course the branch of government closest to the people, and in a representative democracy that is important. As many have noted, it is not a coincidence that Congress is the first branch listed in the Constitution.

But the Congress of 2022 is not the Congress that the founders envisioned. It is not even the Congress that President Biden served in for decades. Congress struggles each year to pass a budget. And in recent years, with the exception of a response to the deadliest pandemic in a century, Congress has passed little other legislation.

One primary barrier to the passage of legislation is the filibuster in the Senate. What was once a rarely used tool, that required Senators to hold the floor until a supermajority of their peers voted to end debate, has become a de facto requirement that 60 votes are necessary to pass any non-budgetary legislation. As a result, the last time “major” non-budgetary legislation (besides pandemic relief bills) passed Congress was the first two years of the Obama administration. It is reasonable to conclude that eliminating the filibuster is necessary if Congress is to be expected to legislate on “major questions.”

There are numerous counterarguments to eliminating the filibuster. One is that maybe the public doesn’t want legislation on major questions. But polling data on issues like climate change, abortion, and gun control — all policy areas recently the subject of Supreme Court decisions — all indicate otherwise. Dissatisfaction with Congress does as well.

Another counterargument is that making laws should be hard. I agree! But the experience of Republicans when they controlled both houses of Congress and the presidency from 2017-2018, and of the Democrats currently, shows that even bills that require 50 votes (through the reconciliation process, or repealing regulations using the Congressional Review Act) require negotiation and compromise — and take months. Getting rid of the filibuster will not lead to an avalanche of legislation. It will just lead to more than we get now.

President Biden reportedly looks back fondly upon the era when he was a senator and hard compromises led to landmark laws in environmental protection, disability rights, and many other policy domains. But to get that era back requires different rules than prevailed during the president’s senatorial career. The Supreme Court has just given him the reason to support elimination of the filibuster. If Congress is to address major questions, the filibuster has to go.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.

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