By Mike Koetting March 21, 2021
The American Rescue Plan is law. Very good. But what now? It passed with zero Republican votes and we have shot our Budget Reconciliation bullet for the time being. Given lack of Republican interest in engaging, do Democrats just spend the rest of the year making speeches about policies that aren’t going to happen. Faced with Republican opposition to whatever is proposed, do we just roll over?
I was initially wary of attacking the filibuster on the grounds it would even further deepen the divide. But the reality is that even if a substantial majority of the population supports them, action on voting rights, immigration or climate will be impossible under current Senate rules. Our choice is to eliminate the filibuster or give up on moving political conversations from culture wars back to policies. Capitulate or get rid of the filibuster. The latter, on reflection, I have come to see as not only necessary politics, but good policy as well.
Some of our attitude on this issue gets clouded by thinking of the filibuster as a way to protect individual rights, to protect against the tyranny of the majority. But preserving minority rights is not determined mathematically. There are some rights that should not be abolished even by a Senate vote of 95-5. The protection of minority rights lies more in the overall structure and intent of a government than in one specific mechanism like the filibuster. The idea that abolishing the filibuster puts America on a slope to systematic erosion of individual rights seems rather far-fetched, particularly in light of the extensive set of checks-and-balances built into every aspect of our governing mechanisms.
The more one looks at specifics, the worse the argument for the filibuster seems. Jessica Anderson says in “The Argument” podcast it wouldn’t be right for 51% of the people to impose their will on the other 49%. Of course, this assumes that no change to the status quo is not as much an imposition of one group on the other as is a change. In reality, she is arguing that it is better for the 49% to impose their will on the 51%.
Moreover, this formulation simply does not reflect the current realities. In today’s Senate, the 50 Democratic senators represent 56% of the population, and the Republicans only 44%. By itself, that is a significant difference. In fact, it is possible for a coalition of current Republican senators representing less than one-third of the population to stop legislation. Thus, the real danger is tyranny of the minority.
Then there are the practical consequences of demanding higher than majority vote for routine actions. The filibuster, when combined with the imbalances structured into the Senate, has ground governance to a halt. As Biden says: “It’s getting to the point where democracy is having a hard time functioning.”
The idea that the filibuster promotes compromise is equally illusory. At first thought, it might seem that the higher threshold would encourage the majority to create compromises with the minority party that would result in more universally accepted legislation. But that argument assumes the minority party actually wants something like what the majority party wants. In fact, if the minority party doesn’t share goals—or believes it can extract political advantage from simple obstructionism–under the current filibuster rules there is no incentive whatsoever for the minority party to give up anything since they can stop everything.
Conversely, it weakens the incentive of the majority party to seek compromises since the minority has the option of torpedoing everything even after the compromises. (That happened to Barack Obama on several occasions.) How many of you think there were any set of compromises Democrats could have offered that would have brought Republican votes to the American Rescue Act, a bill, by the way, supported by 70% of the Americans willing to voice an opinion.
The actual effect of the filibuster is to obscure political accountability. Nothing happens and each party blames the other. Small wonder people have such a low opinion of Congress. Tellingly, in the wake of the passage of the American Rescue Plan, approval rating of Congress jumped materially. Most people believe Congress is elected to do things, not just to accuse each other of blocking things. It is very difficult to do things in this climate with a filibuster.
It is also the case that the current filibuster rules lead to governing incoherency. Why does it only require 51 votes to give billions of tax breaks to the richest Americans but it requires 60 votes to enact environmental legislation essential to the survival of the planet? Why does a tax credit for children require 51 votes if it is called “budget reconciliation” and 60 votes if it isn’t? Why should creating—or eliminating– the ACA require only 51 votes but modifying the smallest legislative provision require 60? And so forth. There is no underlying rationality.
The constant use of filibuster, and the resulting need for budget reconciliation bills, also leads to legislation, like the American Rescue Plan, that is loaded with so many provisions that there was no sensible way to debate and discuss. This is not a healthy approach for a democracy. Laws are better when different viewpoints are actively incorporated, something rendered virtually impossible in the current all-or-nothing environment.
It is not as if the filibuster is a Constitutional imperative. In fact, it was explicitly rejected by the founding fathers. As Alexander Hamilton said in Federalist 22, reviewing the requirement for a supermajority included in the Articles of Confederation: “What at first sight may seem a remedy, is, in reality, a poison.” The first use of the filibuster arose later, primarily by Southern Senators, despite a letter from Madison to Calhoun stating that there was never any intent to allow unlimited debate. However, Calhoun persisted and the filibuster was a part of the Senate, used primarily to support slavery, then oppose Civil Rights. In the last 20 years, it has become a defining feature of the Senate, resulting in little meaningful legislation and growing popular distain for Congress.
Another concern is the consequence of eliminating the filibuster if the Republicans get the majority, which doesn’t seem impossible. True, if the current Republican Party does regain power and feels unconstrained by the filibuster, it could be ugly. But we need to keep that from happening, because the current Republican Party is a democratic aberration. It must be consistently defeated until there is a responsible Republican Party and getting rid of the filibuster is almost certainly a necessary step on that road. Moreover, I believe the only reason that McConnell and crew have not already gotten rid of the filibuster is that they got the only things they care about—judges and lower taxes—by selective elimination. If they had a majority and there was some thing they really wanted that was blocked by the filibuster, it would be gone in less time than it took to confirm Amy Coney Barrett.
Finally, there are better options for ensuring meaningful opportunities for minority input. One such proposal is requiring a “talking filibuster”—where the filibuster could last only so long as opponents physically held the floor. This seems to have a bit more support among Democrats who are reluctant to simply end the filibuster, but suffers from the defect of not directly addressing the problem. A much more elegant proposal is one that then Senator Tom Harkin introduced 25 years ago, which would incrementally lower the number of votes needed from 60 to 51 as the number of days of debate increased.
I still worry that ending the filibuster deepens the divide. But not ending it seems to increase the odds of making the divide permanent. People will not regain their trust of American democracy unless they see it working. To some, democracy “working” will seem like selling-out the country. But we can’t let these people define how we govern—or how we fail to govern. We must be able and willing to give-and-take our way to address the many serious problems confronting the country.