Should the filibuster die?

Do the arguments against killing the filibuster hold up?

Photographer: Herbert Dorfman/Corbis Historical via Getty Images

Sen. Elizabeth Warren speaks during the National Action Network convention in New York. (Seth Wenig/AP)

Last week Elizabeth Warren threw down the gauntlet by arguing for killing the Senate filibuster as the only means of accomplishing the agenda that 2020 Democrats have set out for themselves. Without it, given that any decent-sized legislation needs 60 votes to pass, and accepting the impossibility of getting even one or two Republican votes, any progressive agenda is dead in the water.

So the argument in favor of nuking the filibuster is clear and obvious. As Harry Reid said back in 2013 when he invoked the nuclear option to kill the filibuster for most nominees, the Senate must evolve beyond Parliamentary roadblocks.

But generally, the idea of losing the security blanket of 60 votes is not pleasant for the times when one’s party is in the minority; so it isn’t surprising that this idea has not caught on. Senators as diverse as Corey Booker, Bernie Sanders, and Kirsten Gillibrand have shown reluctance to go there, without really admitting that this makes most of their plans moot. But I understand. The possibility of terrible Republican legislation has most of us in a defensive crouch.

So rather than make the positive case in favor of dropping the filibuster, I want to examine the main arguments in favor of keeping it, to see if they hold up. Will the end of the filibuster bring about apocalypse, or be the means of un-jamming a jammed up government?

Argument #1: Bipartisanship.

This argument states that with the 60-vote threshold, anything that passes the Senate would have to be bipartisan, and thus have more legitimacy. And that the filibuster forces Senators from both parties to work together, and thus the legislation they craft is acceptable to both sides.

This is true, of course. However, the only premise that makes this work is that both parties are working in good faith, wrestling over legislation that best represents their states, and saying yea or nay based on the interests of their voters.

The argument quickly falls apart when you look at how the filibuster has actually been weaponized since the Obama Presidency. Rather than wrestling over policies, they wrestled over ‘wins’—which meant, in effect, that even bills that had strong bipartisan support were blocked because it would mean a win for the other side. As Norm Ornstein tells it, during the Obama presidency Republicans began filibustering even uncontroversial legislation, that had in some cases been crafted by Senators from both parties, just in order to avoid passing something that might look like a win for Obama.

While it remains the media’s habit to construe any legislation as a win or loss for the President, regardless of the Congressional work that went into it, and while the country remains as polarized as it is today, it is hard to see the Senate returning to norms and saving the filibuster only for particularly objectionable bills.

Argument #2: Keeping the filibuster AVOIDS VOLATILITY

If 51 votes in the Senate are enough to pass bills, this argument goes, then you would see legislation reversing every few years as each party gains control of the Senate has their way; causing volatility in the system and not permitting laws to settle in. This objection imagines legislation that is passed on an entirely partisan basis, such as the Affordable Care Act; the constant back-and-forth would not allow the industry to acclimatize.

But that’s not strictly true: a party would need not just the Senate, but also a majority in the House and the Presidency. This is a higher bar than merely having a majority in the Senate. That kind of a hat trick does not happen often, though once in a while, it does. So it would not be as volatile as it first appears.

Besides which, it isn’t just the having of a majority that determines whether a party is able to pass partisan legislation: any reasonably popular law develops a constituency, and Senators are loath to take benefits away from their voters. There’s a reason why although Republicans fought against the ACA for 8 straight years, when they finally achieved a clean sweep of the House, the Senate, and the Presidency in 2017, they didn’t want to actually repeal it. The ACA had developed a base by then. Taking away benefits is hard. They had to come up with the fig-leaf of a replacement for the law, which was so poorly conceived that it could not pass the Senate.

Even the “skinny repeal”, as it was known, a bare-bones paring down of the individual mandate, could not get 51 votes in a Republican Senate; it would also have run into difficulties in a Republican House.

Maybe not be as volatile as it first appears.

Worse, the volatility that does exist today is asymmetrical—and so much more damaging. It takes 60 votes in the Senate to pass any reasonable complex progressive set of benefits. But because budgetary bills are exempt from the 60 vote threshold, defunding such a legislation takes only 51—a majority.

Consider also that a highly compromised, imperfect law such as the ACA—forced to be so, because it had to clear the threshold of pleasing 60 Senators rather than just 51, could not be easily repealed at the zenith of Republican sway over the government. But given a 51 vote threshold, the law might not have been such a compromise, and would have gained an even stronger constituency. For instance, it would have certainly included the public option: this part was ditched just in order to gain Joe Lieberman’s vote.

But stepping back, the 60-vote hurdle has given us a system that is ossified and cannot accomplish many of the goals of the voters who send Senators to DC. Perhaps a bit of volatility—where changes are actually made that Senators would be accountable for—might be a good thing.

ARGUMENT #3: PROTECTS US WHEN WE’RE IN THE MINORITY

Of all objections to dropping the filibuster, this one may be most truly a mirage. A scary one, no doubt. One imagines a Republican majority in the Senate able to defund Planned Parenthood or ban abortion or lower taxes for the wealthy.

But the fact is, the power to pass legislation with 51 votes has always been in the power of the majority. It just needs to be a two-step process—first remove the obstacle, the filibuster, by changing the rules around ending debate on a bill, and then pass the bill on a simple majority.

If they want a legislation badly enough and have a majority for it, Republicans will kill the filibuster in order to do it. Just last week Senate Majority Leader McConnell changed Senate rules to cut debate time from 20 hours to 2 in order to speed through Trump’s appointees. Republicans have shown they do not need the Democrats’ permission in order to break norms and rules.

The truth is, the 60-vote threshold is often used as a way for Senators to blame the other party for not passing bills that their base wants, but that they can’t even produce a simple majority for. This is why Senators of both parties have held on to the filibuster thus far—it is a heat shield for them, but it does not serve the public that wants their government to actually accomplish things.

If you count up all the red states in the country, you get to 21. Grant them two Republican Senators each, and you get to 42. That’s not enough to make a majority—even a simple one. By necessity then, aside from those, any other Republican Senators in office will be appealing to a purple or blue voting public. This is our real protection against hard-right, purely partisan legislation becoming law.

Argument #4: Killing the Filibuster Violates norms

Sure, this argument goes, McConnell and the Republicans might violate norms left and right, but does that mean we have to stoop to their level?

No—the answer is No. We do not. And by removing the obstructive tactic of the filibuster, we would not be breaking norms. We would merely be returning to norms broken by Republicans in recent decades; we would be defusing a weapon that had lain fallow since the early nineteenth century, picked up and used in earnest by the McConnell Senate since the Obama years.

We would be returning to the norm of a mostly majoritarian Senate envisioned by the Founders. From the Wikipedia article, the filibuster has been available as an option to obstruct legislation by the majority since 1806. However, it was rarely used except to block legislation that was particularly noxious to the minority. Making it so de rigueur that by now, one just assumes that most legislation needs 60 votes to pass, is the real broken norm; and it was broken by McConnell.

Besides which, the word “norm” usually means a desirable social contract that is maintained, not by rules and laws, but rather by voluntary compliance. However, the filibuster is no such thing. As Sarah Binder explains, the filibuster was the result of an accidental rule change in the Senate, not planned into being by the Founders, nor by the people who made the rule change; and in fact, not even really understood until decades after.

Argument #5: The Real Problem is something else

Strangely, whenever the topic of killing the filibuster as a means to make our government functional comes up, I hear people arguing against this by claiming that it’s not the filibuster, the real problem is something else. That something else might be the electoral college, or corporatist Democrats, or money in politics, or Senate apportionment, something else entirely.

But I don’t understand the structure of this argument; in fact I think it is illogical. We do not have just one “real” problem. The presence or absence of one real problem does not have any bearing on the presence or absence of another.

In fact, usually, the filibuster is implicated in even trying to solve your favorite problem, no matter what it might be. If, for instance, you think that merely bringing about campaign finance reform would solve our problems without needing to touch the filibuster—well, good luck getting to 60 votes in order to accomplish that. Most of the time, it is a Catch-22 where none of one’s favorite problems can be solved without first getting rid of the 60-vote threshold in the Senate.

Ultimately, I think this is an emotional argument. One doesn’t want to spend emotional energy on solving a process problem, pragmatic though that might be. One wants to throw down thunderbolts against the evil money-lords that have wrecked our system, and see them go down to an ignominious end; tweaking a cloture rule is hardly the stuff of novels.

However, I think it just might work.

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