Who Will Protect Our Liberties if Democrats Kill the Filibuster?

The job will fall to state attorneys general.

If the effort by progressives to terminate the filibuster succeeds—and Joe Biden’s evolving statements on the issue are a sign they are having some influence—another defense against radicalism will fall. Our constitutional liberties will lose another layer of protection. If that day comes, state attorneys general will stand as one of the last remaining protectors of our liberties and defenders of the law.

Our Founding Fathers designed the Constitution precisely to make it difficult to implement instantaneous revolutionary change. They worried that political factions might work together to oppress those with whom they disagree, and so they created separate branches of government—bicameralism, a federalist system, the Electoral College—and a political terrain that would incorporate a large sphere of interests that would constantly fight over, but never dominate, power.

Today, many progressives are attacking the institutions that prevent them from easily obtaining their desired outcomes. They have seriously proposed court packing to take over the Supreme Court, making Washington D.C. and Puerto Rico states so they can increase the number of Democratic senators, and getting rid of the Electoral College. It’s all about getting and keeping power.

No wonder the Senate filibuster also is under attack. It is an important tool for ensuring that legislation is measured, bipartisan, and constitutional. In other words, it can—and would be—used to pump the brakes on impassioned and imprudent legislation. 

Its removal will also tend toward centralizing control in Washington D.C. and toward more polarizing legislation.

One of the key structural developments in Congress over the last few decades has been the transfer of power from rank-and-file members of Congress to their leaders. Today, political power is centralized, with command-and-control power politics dictating everything. 

U.S. Representative Mike Gallagher summarizes this well: “The problem [in Congress] is a defective process and a power structure that, whichever party is in charge, funnels all power to leadership and stifles debate and initiative within the ranks.” The recent push to allow proxy voting in Congress, so that members need not even show up to vote, might have nominally been in response to the COVID pandemic. But some Democrats have expressed support for making it permanent, a move that would further empower party leadership at the expense of discussion.

Taking the filibuster power away from individual senators will allow the majority party to craft huge bills behind closed doors, pass them on party line votes, and never allow the minority to revise or amend them. In other words, while empowering party leaders can streamline the legislative process, it also removes important veto points that could stop or pump the brakes on bad government and unconstitutional legislation.

Even with the filibuster in place, we can see how legislation that moves quickly through Congress on a partisan vote is more likely to be controversial, bad as a policy matter, and legally suspect. Consider President Biden’s COVID relief bill. It passed without a single Republican vote, and Democrats stuffed it with gifts to their constituencies. 

If gutting the filibuster is successful, it will make our remaining institutional protections even more important. 

State attorneys general are one of these remaining protectors of our liberties, and they will have to become even more active than they already are pushing back against federal overreach.

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The table is already set for them to do so. Recently, attorneys general from 21 states issued a letter to Treasury Secretary Janet Yellen objecting to a provision in the COVID relief bill that limits the states’ abilities to use federal monies to offset tax cuts, a traditional state authority. Ohio Attorney General Dave Yost filed suit to challenge the provision.

Louisiana Attorney General Jeff Landry recently spearheaded a joint lawsuit with 12 other states to challenge President Biden’s decision to impose a moratorium on new natural gas and oil leases on public lands. Though this challenge is to unilateral presidential action and not to legislation, the point remains—where there are limited checks on power, those in charge will abuse it. And the resulting policy tends to be flawed.

States with attorneys general who are rubber stamps for federal overreach will either see their citizens’ rights violated or will have to hire private attorneys to defend their interests. Those lawsuits are not cheap

The role of state attorneys general will be more critical than ever.

To sacrifice the filibuster for partisan gains may make for good short-term politics, but it will remove yet another protection against radical change. And it will make other protections more meaningful—and more active.

The Constitution needs someone to protect it, now more than ever. Voters need protection. The answer to both comes in the form of state attorneys general who will defend the rule of law. Let’s hope they are up to the challenge.

Ryan J. Owens, J.D., Ph.D., is an attorney, the George C. and Carmella P. Edwards professor of American politics, and the director of the Tommy G. Thompson Center on Public Leadership at the University of Wisconsin-Madison. He writes this in his personal capacity.