Hi there.
So far this year, the idea of ending the Senate filibuster has been entirely theoretical. But as the Associated Press and Washington Post show, a series of legislation recently passed by House Democrats is putting the debate into some much-needed perspective. I regularly complain about the filibuster in this newsletter, but I think it’s time for me to dig into what the arguments for preserving it are, and why they don’t hold water.
There are three basic arguments for the filibuster, which forces a 60% majority to pass legislation in the Senate. The first, most common argument is that keeping legislation from passing on a simple majority means Congress is forced to compromise and operate in a more bipartisan fashion. That’s the argument I heard Democratic Senator Jon Tester make during a panel discussion on a recent episode of Real Time with Bill Maher. But my question for Tester and anyone else making that claim is this: How’s that working out for you?
Use of the filibuster to block legislation has steadily risen since the 1980s, with an especially sharp spike beginning in the mid-2000s. In that same time, gridlock has become synonymous with Congress. The filibuster isn’t making Senators reach bipartisan agreements; in fact, it has just the opposite effect. Both sides signal what they want or don’t want, but very little significant legislation is passed. Democrats only managed one really significant piece of legislation under President Obama, the Affordable Care Act. Republicans did even worse under President Trump. Their most significant achievement, the Tax Cuts and Jobs Act of 2017, was passed through budget reconciliation to avoid the filibuster. It’s incredibly difficult for either side to reach a sixty-member majority in the Senate, and neither side is often willing to make significant compromises to overcome the filibuster. The result is gridlock.
Another common argument is that making legislation difficult to pass keeps the American government stable, insulated from the risk of a “yo-yo effect.” This argument assumes that recent trends of frequent power changes will continue. It’s a bad faith argument, though. Many conservatives who warn about this “yo-yo effect” have been actively involved in Republican efforts to repeal the Affordable Care Act, which would amount to that very “yo-yo effect” that they preach against. And the argument fundamentally underestimates American democracy. Right now, both parties can fall back on slogans like “repeal Obamacare” or “defund the police” because they’ll never have to live with the effects of it. These ideas will never survive the filibuster, so legislators don’t have to answer for the outcomes to their constituents. Ending the filibuster means giving both parties a chance to demonstrate what their policies would actually do, thus giving the American electorate a better understanding of how parties benefit them. So, if Republicans repeal the ACA, voters might remove those Republicans and keep them out.
The last and worst argument is that requiring a sixty-vote threshold protects “minority rights.” The Founding Fathers were very much in favor of protecting minority political factions from being trampled by the majority party, but it’s important to remember that the filibuster has no constitutional foundation because the Founding Fathers insisted that legislation shouldn’t require more than a simple majority. Those minority rights protections are already rampant in the American government, and the Senate in particular, without the filibuster. Remember, each state has equal representation in the Senate regardless of population. The current Senate is evenly split between Democrats and Republicans, but the Democratic side represents around forty million more Americans. That in itself is already an overprotection of the minority party. Throwing in the filibuster doesn’t protect minority rights, it cements minority power, which is a total subversion of the democratic process.
And I want to be really clear about something. I’m not just in favor of ending the filibuster now that Democrats are in control. It’s no secret that I’m an advocate for progressive policy, but above all else, I’m an advocate for a strong democracy. The filibuster hamstrings democracy, regardless of who is in power. It needs to be done away with.
There is a little bit of reason for hope that we can at least make some progress on ending the filibuster. I’ve regularly lamented that Democratic Senator Joe Manchin and a handful of others have remained opposed to ending it, but it’s worth noting that once upon a time, many Senate Democrats, including then-Majority Leader Harry Reid vowed to never end the filibuster for Cabinet confirmations. They held that position until they got tired of Republicans filibustering President Obama’s Cabinet picks, and then they changed course. The same could happen now, with the legislative filibuster. In fact, just yesterday, Joe Manchin suggested on Meet the Press that he is open to filibuster reform, such as ending the paper filibuster but keeping the talking filibuster. That’s a technical but significant difference. With the paper filibuster, all a Senator has to do is step into their party leader’s office and inform them that they oppose a piece of legislation, and that’s enough to require sixty votes to pass. With the talking filibuster, a Senator must stand on the Senate floor and talk continuously to keep legislation from coming to a simple majority vote. (The talking filibuster, like the paper filibuster, can be overruled with sixty votes.)
Allowing the talking filibuster is still far from ideal, but it’s a lot better than the paper filibuster. We’ll see if Manchin will further budge.
In other news, David Ignatius uses his latest WaPo column to examine how the United States is leveraging industrial policy to compete with China. Politico reports that Democratic Senator Tammy Duckworth is pushing President Biden to release intelligence related to the Russian bounty scandal. The NYT marvels at the American Rescue Plan’s child tax credit. And Politico explains how Transportation Secretary Pete Buttigieg is taking lead on President Biden’s efforts to promote racial equity.
In entertainment news, Jelani Cobb uses a recent column for the New Yorker to look at the brilliant new film Judas and the Black Messiah to extract lessons on the disparate ways federal law enforcement treats right-wing extremists and more moderate left-wing activists. Newsweek interviews Jodie Foster about her new film The Mauritanian. Vulture reviews the new novel 100 Boyfriends. Newsweek runs down the most anticipated books of the spring. And I recently read Elmore Leonard’s 1983 novel Stick, a direct sequel to his 1976 novel Swag. It carries more than a few hints of one of his most popular works, the 1990 novel Get Shorty.
Lastly, if your schedule makes keeping to a regular exercise routine challenging, the NYT offers up a handful of workouts that take less than ten minutes. Cheers to that.
Thank you for caring enough to read.
Be safe. Wear a mask. You are loved.
Talk to you tomorrow.