George Will reveals plan to counter Trump’s overreach

During Joe Biden's presidency, two centrist U.S. senators elected as Democrats — Kyrsten Sinema and Joe Manchin, now independents — frustrated members of the Democratic Party by vigorously defending the Senate filibuster. Sinema maintained that the filibuster was a valuable safeguard against government overreach, and during Donald Trump's second presidency, the former senator essentially said: I told you so.

Veteran Washington Post columnist George Will examines the state of the filibuster in his April 29 column. The Never Trump conservative has been a scathing critic of Trump, often attacking his administration's overreach. And he stresses that "checks and balances" are needed more than ever.

Will also argues, however, that while the filibuster had honorable intentions, it is being undermined by the deeply bitter partisanship plaguing the United States.

"In theory, the filibuster — a supermajority (60-vote) requirement for passage of significant legislation — should compel across-the-aisle engagement," Will writes. "This would protect the nation from oscillating episodes of extreme policies implementing one party's pristine agenda, until this is undone by the other party's ascendency. In practice, the filibuster has prevented healthy politics — the give-and-take of legislative bargaining that polarization makes career-threatening. Into this void has flowed presidential power: the promiscuous issuance of executive orders, and the largely unsupervised (by Congress) sovereignty of agencies administered by the president. In today's and the foreseeable future's context, the filibuster as an incentive for negotiations is a failure, and an enabler of presidential unilateralism."

Will argues that proposals by conservative Harvard Law School students Thomas Harvey and Thomas Koenig, both members of the Federalist Society, are well worth considering in order to promote "checks and balances" in Congress.

"Three years ago," the conservative columnist explains, "two prodigies — akin to 5-year-old Mozart producing piano compositions — devised a subtle proposal that deserves to shape this year's 35 Senate contests. Thomas Harvey and Thomas Koenig were Harvard Law School students, and members of the Federalist Society, when they published, in National Affairs, a thoroughly Madisonian reform. It scrupulously respects the constitutional architecture of checks and balances. And, like James Madison, the profoundest Founder, it simultaneously serves majority rule and what has been nicely termed mitigated democracy."

Harvey and Koenig's "elegant two-track proposal," Will says, "would require Congress to function as a legislature."

"Track 1 is the status quo: passing bills that receive 60 votes," Will explains. "Absent that rarely existing precondition, however, the authors propose a second track: Under Senate rules amended as Harvey and Koenig advocate, a bill with majority but not 60-vote support could be passed by the Senate sitting as a 'Committee of the Whole.' Such a bill could be eligible for passage by a simple majority vote at the beginning of the next Congress…. The bill would be presented to the president only after twice passing the Senate."

The Never Trump conservative and ex-Republican continues, "The second time, it would be voted on by the one-third of senators elected or reelected while the bill's second consideration was pending…. So, this autumn, voters should ask Senate candidates of both parties if they will support the filibuster reform explained above. Candidates who will not should be spared the discomfort of election. The reasonable presumption will be that they do not really want to be legislators."

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