The Filibuster: Principle Over Expedience

In a recent debate of South Carolina candidates in the GOP primary election for U.S. Senate, three of the five contenders present espoused the demise of the Senate’s filibuster rule. Each indicated that he or she would eagerly work to eliminate this quintessential procedure preserving unlimited debate.

Why would they embrace such a dramatic step, erasing the Senate’s hallmark distinction of two centuries? Especially given its strong, principled conservative support for this important element of the Constitution’s checks and balances.

President Trump wants the SAVE America Act, which among other reforms would require voters to show an ID to vote, on his desk ASAP. He wants it in law yesterday, which the voter ID provision should be because it’s so common-sense. These candidates’ parroting Trump’s wish is simply seeking brownie points.

It’s not as simple as Trump portrays. SAVE has provisions that will result in legal challenges and likely some of the sections canceled on federalism grounds—one reason the bill doesn’t have the votes.

The president has latched onto expediency. He’s been badgering Senate Majority Leader John Thune to change Senate rules and get rid of the filibuster. More precisely, the rule change would lower the threshold for invoking cloture, i.e., ending debate on a measure, to 51 votes.

Republican Leader Thune and nearly all Republican senators oppose that shortsighted tactic. The filibuster requires a 3/5 supermajority to proceed to debating legislation or voting on legislation.

Grousing about the Senate’s filibuster isn’t new. Some Republicans called for changing cloture rules when Democrats used the filibuster to block President George W. Bush’s nominees. Democrats have advocated ending filibusters when the shoe was on the other foot, such as during the Biden years as the Left pushed expediency to enact much of the Green New Deal and other extremist policies.

I began my career in Washington working in the U.S. Senate. I learned more about and came to greatly appreciate the vital nature of the filibuster. Its role is to safeguard against the tyranny of the simple majority. Extended debate can help facilitate discussion and negotiation—serving to ensure the Senate is the cooling saucer to the House’s hot tea, as President Washington put it.

Those with only U.S. House experience tend to underappreciate the essentiality of the Senate’s filibuster. That’s why imprudent firebrands hop on the unwise “kill the filibuster” bandwagon. When I worked on the House side, I saw this immature position arise every time there was a tight partisan margin, which is the source of the current impatience.

As a Capitol Hill staffer and a lobbyist, I’ve seen more defensive legislative wins than offensive ones because the Founders designed Congress that way. Many times, the House has passed legislation that died in the Senate because of the supermajority requirement for invoking cloture.

There are procedural revisions that could help revive the “talking filibuster.” But reducing the U.S. Senate to a simple majoritarian body like the House would be a disservice to the Founders’ intent of a body characterized by thorough debate and working out a mutually acceptable measure—even though it may slow the process. That model has served America well for a very long time.

Granted, it isn’t perfect or foolproof. But its elimination would be destructive of the best interests of our country.

The cooling saucer function would be gone permanently, relegating policymaking to the sort of swings we’ve suffered under in recent years—back and forth, a pendulum from one administration’s policies to the next one’s. Only then, it would be dramatic swings in statute instead of more temporary measures like executive orders and regulations.

I cannot in good conscience or my best judgment vote for someone who would remove the protection the filibuster provides our nation. Candidates and voters must think better of giving either party a much clearer shot at enacting unwise or extremist legislation.

The Declaration, the Vine and Fig Tree, and 250 Years of American Independence

At the 250th anniversary of the adoption of the Declaration of Independence, our nation has embraced this august anniversary. From sea to shining sea, special events have filled our calendars and occupied our attention.

Artists, musicians, historians, creators of all sorts have brought forth new USA-themed commemorative works. Documentary filmmaker Ken Burns has produced another masterpiece for this occasion. Newspapers, magazines, all sorts of media have contributed writings and video on all kinds of angles about the actions and events leading up to the Fourth of July, 1776. It’s exciting and reminds us of our shared history.

Those of us old enough to remember the Bicentennial in 1976 realize that, although the nation was celebrating that grand occasion and there was abundant good cheer and patriotism, not everything was hunky dory. Stagflation, gasoline shortages, the Cold War with the Soviet Union, political discord in that election year, and more. We recognize all that now. Back then, youngsters often missed the strife, focusing on the fireworks and festivities before our eyes.

The Declaration

And what’s the object of these landmark celebrations, then and now? The Declaration of Independence.

The British government had hardened its grip on its North American colonies following the French and Indian War. By the mid-1770s, the Mother Country was more like Cinderella’s stepmother. The British sent military troops to occupy and enforce the Crown’s harsh orders. Americans died at their hands in the Boston Massacre and at Lexington and Concord. Americans, who were subject to and supposedly beneficiaries of the British constitution, suffered the violation of their rights—rights under English law and inalienable rights.

The British escalation of its strong-arm tactics, disrespect toward these American British citizens, its government imposing taxes and other coercive policies on colonies and colonials without the consent of the governed, All this led to July 4 and the Declaration of Independence.

The Continental Congress that June adopted Virginia Delegate Richard Henry Lee’s resolution to sever ties with Great Britain. A committee was formed to draw up a document declaring the American colonies’ independence. Its several members asked Thomas Jefferson to write the first draft. John Adams and Benjamin Franklin offered a few edits, and the committee presented the document to the Congress on June 28 (the very same day Continental troops prevailed against the attempted British invasion off South Carolina’s coast at Charles Town, now known as Carolina Day). Congress took it up July 1. By July 4, all the colonies’ delegates had concurred, and the president of Congress, John Hancock, signed the Declaration. The remainder of sworn signers penned their names to the Declaration on August 2.

That revered document begins:

    WHEN in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

          We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government. The History of the present King of Great-Britain is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid World.

This was followed by 27 specific charges of Britain’s “repeated injuries and usurpations” against the American colonies, along with two paragraphs recounting measures the Americans had taken in seeking redress, concluding with a paragraph in which American independence is declared.

We, . . . appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States . . . , with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

With this document, the Continental Congress asserted independence and self-government. Those brave Americans had to fight a war against their overlord to secure liberty. And by God’s grace, they did. We have a nation formed by fallen men.

The Vine and Fig Tree

The biblically literate Founding generation put their hand to the sword and their trust in Almighty God. And what was their objective?

The Old Testament book of Micah describes the establishment of just government: God’s kingdom, where the author of justice and righteousness shall bring peace among the nations. Such perfect peace will lead nations to “beat their swords into plowshares,” “their spears into pruning hooks.” War will be no more. And then, “they shall sit every man under his vine and under his fig tree, and no one shall make them afraid.”

This metaphor appears in many of the Founders’ writings, both public and private. It was a favorite of George Washington’s. This scriptural passage, discussed in chapter 9 of my book To Invent Is Divine, highlights and intertwines several crucial elements in the context of economic endeavor, human ownership, and shalom. It’s the scene of someone resting after laboring to improve the property that is his farm. There is a vine and a fig tree, each bearing fruit from the owner’s labors. To ask who owns the vine, tree, and their fruit is entirely unnecessary.

And then there’s the security amidst this situation. Here we have private property rights, inherent ownership of the fruits one’s labor produces, and the absence of fear and threat, including clear title. Contrast this peaceful scene with the insecurity, abuse, usurpation, and danger the Continental Congress cites in the Declaration that the colonials had faced for years from an increasingly unbearable sovereign. The vine and fig tree passage, where inherent ownership rights to one’s property and to the fruits of one’s labor are secure, represent the temporal results the Founders sought to deliver to the Americans in the former colonies and to their posterity.

Chapters 12 and 14 of To Invent Is Divine return to the biblical basis for private ownership of property, discussing the Declaration of Independence in the context of biblically founded property rights. The phrase from the Declaration, “the Laws of Nature and of Nature’s God,” is the authority the Declaration Congress invokes for its otherwise treasonous action. Gary Amos, in his book Defending the Declaration, cites John Locke, with whom Jefferson and most Founders would have been familiar, as the source of this language enshrined in the Declaration. Amos says Locke frequently employed “law of nature,” regarding what God has generally revealed. This is what the Bible calls the law written on humans’ hearts. Locke used “law of God” in reference to God’s moral law. Moreover, Locke combined these two types of law in a single phrase. If the Continentals were to succeed in securing independence and the flourishing vine and fig tree of unthreatened rest and peace, only “the Laws of Nature and of Nature’s God” and those laws’ Author would bring them about.

250 Years and Counting

July 4, 2026, marks 250 years for the American republic. Over those two and a half centuries, the United States of America has weathered wars, natural disasters, economic depressions, internal discord, and political unrest. America has also enjoyed unity, prosperity, and dynamic competition driven by innovation and a free enterprise economy. As I say in To Invent Is Divine, chapter 12, “Property rights, coupled with ordered liberty, the rule of law, and limited government, provide a stimulative environment for thriving like a greenhouse for growing plants.”

Our Founding visionaries weren’t demigods, they were flesh-and-blood humans. Those chosen in their respective colonies as delegates to the Continental Congress came together, each with strengths and weaknesses, vices and virtues, his own point of view, personality, attitudes, and opinions. Some were likable, others not so much. They held in common many things, notably a solemn duty to represent the colony that elected them to advance the best interests of the 13 colonies insofar as it didn’t run counter to each one’s individual colony’s interests.

Like us, every American of every generation has vices and virtues, common human weaknesses, and a perspective shaped by their times. Each generation seems to go through both division and unity, both prosperity and challenge. And we are e pluribus unum, one people out of many. Each of us has a civic and moral duty to try to make this republic function. We owe these United States our loyalty, our affection, our devotion over other nations and over selfish interests.

Today, as in 1976, we celebrate America’s birthday as a struggling, divided nation. Democrats battle between constructive moderates of the Bill Clinton strain and socialists of the radical extremist Mandami-Squad wing, while Republicans duke it out between Reaganite conservatives and populists whose ideology embraces the activist, interventionist government of the Progressive Era. Congress is practically evenly divided. Recent presidential elections resemble a ping-pong game, sending one party’s chief executive to the White House and then the other party’s diametrically opposite candidate.

I’m contemplating two recent Wall Street Journal columns, one by moderate Democrat William Galston, the other by former Reagan speechwriter Peggy Noonan. Both speak to these times and to the themes addressed above. I close with their words as food for thought for my fellow Americans to ponder this Fourth of July.

Galston writes:

At its best, conservatism . . . identifies the aspects of a tradition that are enduringly good and seeks to conserve them. In the U.S., this means dedication to the principles of the Declaration and the rule of law embodied in the Constitution. In this sense, we should all be conservatives.

. . .

At its best, liberalism in America focuses attention on the gap between principles and practices and mobilizes public support to close these gaps. In this sense, we should all be liberals.

. . .

I hope we will reject the extremes of both the left and the right. Neither a nation defined by its past sins nor one defined by ancestral lineage can replace an America dedicated to the principles of the Declaration.

Noonan writes:

. . . America’s wide-openness . . . is unique to us, a tradition and a thing of lore.

. . .

You can think, within two seconds, of stories of nobodies who became somebodies [in America].

. . .

. . . I continue to think about the political challenges to our traditional ideas of economic freedom that will be coming the next few years.

. . .

. . . [T]he answer isn’t socialism, the old idea that is rising again.

. . .

American free-market capitalism generates—it allows things to be brought to life. Socialism merely distributes what is. And in the end it always relies on lies, the first of which is always that it works.

Happy Independence Day, y’all!

A Hearing to Advance the UnETHICal Way of Upending Hatch-Waxman

On June 4, the U.S. House Judiciary Subcommittee on Intellectual Property will hold a hearing titled “Medicines and IP: Balancing Innovation and Access.”

This hearing appears to be pretext for promoting legislation that would dangerously weaken biopharma patent rights: the ETHIC Act. This bill, which Conservatives for Property Rights opposes, prohibits drug innovators from asserting more than one patent in a “patent group” in patent litigation. The ETHIC Act denies enforcing allied patents that all inventors by right should be free to defend.

ETHIC is premised on false narratives cooked up by special interests, invoking made-up, scary-sounding ghost terms such as “evergreening,” “product hopping” and “patent thickets.” Advocates assert that a product protected by several patents must somehow delay generic drug market entry and reduce competition—allegedly by gamesmanship, glomming on duplicative patents, extending a drug’s life with more recent patents.

What this bill’s proponents don’t want people to know is that many products, including complex products in every useful art and field of technology, typically apply more than one patent. Every single one of those inventions must meet the patent law’s standards of novelty, utility and nonobviousness.

Moreover, ETHIC Act backers’ false claims don’t stand up to scrutiny. The average brand drug’s market exclusivity lasts 12-14 years before generic competition begins—well short of the 20 years of a patent term. Also, a 2024 U.S. Patent and Trademark Office report finds that the number of patents on a medicine and its market exclusivity period aren’t connected. Closely related patents must be linked by "terminal disclaimers," which cause those patents to expire simultaneously with the first patent filed.

Supporters of antipatent legislation cite figures from sources like Arnold Ventures-funded researchers and the Initiative for Medicines, Access, & Knowledge. A 2022 Hudson Institute study reports unreliable, unsubstantiated, irreplicable data and conclusions drawn and touted by I-MAK, despite their slim attachment to the facts; further analysis by Hudson confirms I-MAK’s methodological shortcomings and misleading conclusions. Prof. Erika Lietzan of the University of Missouri in a 2025 article finds I-MAK drawing faulty conclusions from the same sorts of questionable practices in its claims about biologic and biosimilar competition.

You might expect the people on the IP Subcommittee to be the most informed about the patent system, the role of patents in incentivizing investment of time, money and effort into invention, how patents secure exclusive rights in the fruits of inventive labor, their role in moving an invention to a commercial product—in short, how patents secure private property rights in one’s creative and inventive efforts and facilitate practical benefits for inventors, investors, customers and society more broadly.

Sadly, many lawmakers, including some on this subcommittee, don’t understand patents and the patent system or how they’re central in fostering human flourishing. America’s property rights-centric patent system, as Abraham Lincoln put it, “secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”

When this hearing convenes, ignorance of patents will probably be on display—combined with ignorance of the drug research and development process, how patents incentivize cutting-edge invention of new therapies, cures and diagnostics, and how the Hatch-Waxman Act solved for balancing pharmaceutical innovation and access 40 years ago—with phenomenal success. Generic medicines now account for more than 90% of U.S. prescriptions filled.

Limiting enforcement to a single patent per "patent group" will diminish incentives for future R&D in a high-risk industry in which it takes multiple patents to cover a product’s full scope. Surely people know that the only way a generic medicine comes about is by copying, in the Hatch-Waxman framework, a brand drug.

Right now, China is investing heavily in biotech and advanced technologies. Only reliable U.S. patents can ensure American leadership in innovative sectors and technologies such as biopharma. Misguided congressional hearings and legislation undermine what America’s innovators—and the United States—need most: the fuel of interest plus the fire of genius.