Whither the filibuster?

“No decision facing Democrats over the next two years will shape the long-term political competition between the parties more than whether they end the Senate filibuster to pass their agenda to reform elections and expand access to the vote,” the Atlantic says, because the Democratic Party’s “immediate political fate in the 2022 and 2024 elections is likely to turn mostly on whether Joe Biden can successfully control the coronavirus outbreak—restarting the economy and returning a sense of normalcy to daily life.”

So what’s the problem? Doesn’t the GOP have a shared interest in conquering the pandemic, restoring the economy, and getting back to normal? Let’s assume, for discussion purposes, they do and a semblance of bipartisanship will prevail in bringing Covid-19 under control, at least to the extent of distributing vaccines, if not further stimulus relief.

“But the contours of American politics just over that horizon, through 2030 and beyond, will be determined even more by whether Democrats can establish new national standards for the conduct of elections through a revised Voting Rights Act and sweeping legislation known as H.R. 1, which would set nationwide voting rules, limit ‘dark money’ campaign spending, and ban gerrymandering of congressional districts.”

Ah. There’s the rub.

“With both bills virtually guaranteed to pass the House, as they did in the last Congress, their fate will likely turn on whether Senate Democrats are willing to end the filibuster to approve them over Republican opposition on a simple-majority vote. That decision carries enormous consequences for the future balance of power between the parties.”

I don’t need to go into detail about how Republicans feel about voting. They’re against it. So they will try their utmost to derail a new Voting Rights Bill (after the Supreme Court eviscerated the old one) or any kind of voting reform.

But beyond that, a failure of Democrats to deliver on voting rights could unravel the grassroots activism that won the White House and Senate in 2020. Those people who worked so hard to turn out voters, and put up with so much to vote, in the face of Trump’s and the GOP’s onslaught against democracy will get discouraged if all their effort goes for naught.

The filibuster is a dicey issue. It had its usefulness; it more or less compelled bipartisan negotiations, and put speed brakes on legislation that was too partisan or one-sided. But that was back when the two parties had a working relationship and their differences were philosophical, not tribal. Now, the filibuster is more likely to be used as a weapon to keep the other party from governing at all.

Of course, eliminating it is a two-edged sword, because the shoe might be on the other foot someday. However, big pieces of it are already gone; judicial nominees now require only a simple majority, and some legislation can be passed with simple majorities through the budget reconciliation process. But there’s still a lot of legislation that can’t pass without 60 Senate votes; and in a polarized nation, neither party is likely to get that. The last time it happened was in 2009, when Democrats briefly had a 60-vote Senate majority they used to pass Obamacare.

There’s no legal impediment to modifying or eliminated it. The Constitution doesn’t prescribe it. It exists by virtue of Senate rules, and those can be changed by a simple majority. For example, breaking a filibuster hasn’t always required 60 votes; it used to be two-thirds (67 votes), and in those days you had to actually filibuster — have Senators make speeches on the Senate floor — which you don’t anymore. Now, lack of 60 Senate votes automatically kills legislation subject to filibuster.

But what if Republicans decide to obstruct President Biden’s entire agenda, not for the good of the country, but to turn him into a failure to give themselves an edge in the 2024 election — as Mitch McConnell did in 2009, when he declared his sole goal was to make Obama a one-term president? When that kind of Machiavellian politics reigns, the country becomes ungovernable, and the people’s needs go unmet (unless you believe the only thing the American people need is no government at all, and there are people who believe that; remember conservative activist Grover Norquist’s pledge to “drown government in the bathtub”?).

Unified control of government — holding the White House, and both houses of Congress, at the same time — is relatively rare. On paper, the Democrats have that for two years, but only if none of their senators defect. And it might not last that long, if someone dies, quits for health reasons, or leaves the Senate for other reasons. (The fact Democrats have no Senate votes to spare also means Biden can’t tap any of his party’s senators for judicial openings, cabinet posts, or other appointments.) The Democrats probably have to use it or lose it. So anything they want to get done has to be done in the next two years, or at least, they pretty much have to operate on that assumption.

A Voting Rights Act is key to everything. Without it, Republicans can keep throwing up more barriers to voting, and solidify minority rule. The House has already passed an ambitious voting rights bill, one that goes beyond the original 1965 Voting Rights Act, which for federal elections, “would require every state to

  • provide online, automatic, and same-day registration;
  • ensure at least 15 days of in-person early voting;
  • provide all voters access to no-excuse, postage-free absentee ballots;
  • and offer drop boxes where they can return those ballots.

It “would also

  • end gerrymandering by requiring every state to create independent commissions to draw congressional districts;
  • establish a system of public financing for congressional elections;
  • institute new safeguards against foreign interference in elections;
  • and require increased disclosure of the unlimited dark-money campaign spending that was unleashed by the Supreme Court’s 2010 Citizens United ruling.”

In addition, it Washington, D.C., statehood, although a separate bill passed by the House in 2020 is needed to implement that, and would also have to pass the Senate. (Republicans hate this; D.C. is 90% Democratic, and D.C. statehood would give Democrats 2 more Senate seats for the rest of eternity.)

Neither of those bills are going anywhere except over Republicans’ metaphorically dead bodies. Yet if Democrats don’t kill the filibuster in order to advance them, Republican vote suppression efforts will only grow, and further deepen the nation’s racial divisions because much of those efforts are aimed at minority voters.

Aside from practical considerations of governing, what’s wrong with making our system of government more democratic? Especially when doing so is necessary to constrain the other side’s swing toward authoritarianism?

Lee Drutman, a political scientist and reformer who champions ranked-choice voting and a multiparty system (see article here, and his book here), says if the Democrats fail to pass voting rights legislation, which requires blowing up the filibuster, “there is a very good chance that America will wind up under an extended period of minority rule in which the party that represents 45–46 percent of the country can have a majority of power in Washington, which is not only fundamentally unfair, but … creates a sense of fundamental illegitimacy [that] is deeply destabilizing for a democracy.”

Actually, I think we’re already there; see, e.g., lynch mobs climbing over barriers to get at congressmen and senators with nooses, and rightwing congressmen carrying guns into the Capitol (and stepping around metal detectors to try evading security).

What about the Supreme Court? Wouldn’t the conservative 6-3 majority that struck down the original, milder, Voting Rights Act do the same to new voting rights legislation? Maybe. But the author of the Atlantic article thinks that while “portions” of such legislation might fall under the judges’ gavel, the “legal analysts I’ve spoken with doubt they would invalidate either measure entirely.” If they did, they might find themselves with half a dozen new brethren, because a Democratic majority that can pass a voting rights bill can also expand the Supreme Court. (However, it’s more likely that one or more Democratic senators would shy away from that.)

Read that article here.

My opinion? I think the Democrats should give Republicans a chance to cooperate on vital legislation, but in today’s politically toxic environment I doubt any cooperation will be forthcoming, and in any case the Democrats need to protect our right to vote — over Republicans’ metaphorically dead bodies if necessary — and certainly can’t do that without nuking the filibuster. They’ll have to do it, eventually, so they shouldn’t hesitate to do it the first time they hit a brick wall of GOP obstructionism.

If the shoe is on the other foot someday, so be it. In my view, Democrats have nothing to lose by setting the precedent. Does anybody believe McConnell and his Republicans wouldn’t ditch the filibuster in a heartbeat to serve their interests? Respect for tradition, and comity, will get Democrats absolutely nothing in return. We’re way past that point.

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  1. Mark Adams #

    If the current Senate eliminates the filibuster that does not mean it is gone forever, a future Senate can reinstated. Still if you use it then it ought to be some Senator actually speaking. I thought Cruz’s reading of “Green Eggs and Ham” was rather good, but he needs to work a bit on pacing and character voices.

    If the Democrats bring forth a proposal that is also acceptable to republicans on Corvid 19 then it passes with bi partisan support. Though it means Democratic leaders will have stiffed some of their supporters.

    HR1 is controversial, and if it passes it s going to have to face a gauntlet of court challenges, since our Supreme Court does not review the constitutionality of all laws passed by Congress and signed by the President. Even laws that are clearly unconstitutional such as the Logan Act are presumed constitutional until the court rules otherwise, and never actually charging anyone under the act keeps it on the books.

    While Congress may create DC as a state it would be better to return the district to Maryland. Eventually we will have to move the Capitol to anew district when the new state tries to strong arm the Federal government or fails to provide adequate security, water, food, power, ect to federal property. In the short term it is highly likely the Senators would be Democratic, but times change and maybe a o star will run as a Republican and win.
    It is possible for divided government to work, even work well if the center is allowed to govern. probably disposing a lot of hoped for legislation. I don’t know if there is a talented Kermit the Frog and Fonzie Bear able to control umm coral ummm conjure the crazies into cooperation.

  2. G #

    “…the Atlantic says, because the Democratic Party’s “immediate political fate in the 2022 and 2024 elections is likely to turn mostly on whether Joe Biden can successfully control the coronavirus outbreak—restarting the economy and returning a sense of normalcy to daily life.””

    That may be true or is agreeably true, but what makes the American public think that Republicans will do any better in 2022 and 2024 to make them vote for the other party? Their track record of the past failings should be evidence enough not to think that a Republican would be the solution to “their” Problems. At this the politicians aren’t to blame – it is the American public for not being able to distinguish who would the better person for that challenge. I’d rather be graded a C or even a D rather than an F.

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