Filibuster

Why Democrats Should Stop Worrying and Learn To Love the Filibuster

Progressives are promising to get rid of this long-standing check on the power of raw majorities in the Senate just when it would help them the most.

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The possibility of President Donald Trump placing a third justice on the Supreme Court has some Democrats contemplating abolishing the filibuster if the 2020 election gives them control over the Senate.

The filibuster is a standing provision in procedural rules for the U.S. Senate that allows any senator unlimited floor time to discuss pending legislation. Senators can use that time to stall a bill indefinitely, or until a three-fifths supermajority of senators votes to cut them off and bring an item up for a final vote.

This feature of Senate rules has been used by both and Democrats and Republicans, whenever they find themselves in the minority, to prevent or delay the majority party from passing legislation.

Through the so-called "nuclear option", a raw majority of senators can permanently limit the type of Senate actions that can be filibustered. Democrats deployed this tactic in 2013 to remove senators' ability to filibuster the confirmation of executive branch and federal judicial nominees. Republicans did the same thing in 2017 for Supreme Court nominees in order to put Neil Gorsuch on the bench.

That latter action has left Democrats with few options for preventing Trump and the Senate's current Republican majority from filling the vacancy left by the late Ruth Bader Ginsburg and creating a formidable 6-3 conservative majority on the Supreme Court.

Despite its obvious utility in preventing that perceived disaster, many Democrats are not calling for restoring their ability to filibuster the confirmation of Supreme Court nominees. Instead, they're saying that they will eliminate the filibuster in its entirety so that no legislation can be held up by a minority of senators.

Going ahead with that plan would likely be a mistake, however. As the results of Democrats' 2013 reforms show, any weakening of the filibuster by today's majority can't help but empower the opposition whenever the senate changes hands.

Given that the electoral map is increasingly stacked against Democrats controlling the Senate, they have the most to lose in the long run from eliminating the filibuster. That's true even if getting rid of it would help get some progressive policies over the line in 2021.

"Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year," said Sen. Ed Markey (D–Mass.) on Friday in reference to Sen. Mitch McConnell's (R–Ky.)rationale for not allowing votes or holding a hearing on Barack Obama's Supreme Court nominee, Merrick Garland, in 2016. "If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court."

"The filibuster wasn't made w/ purpose. It's the result of an accident in rulebook revision & bloomed as a cherished tool of segregationists," said Rep. Alexandria Ocasio-Cortez (D–N.Y.) in response to Sen. Diane Feinstein's (D–Calif.) defense of the supermajority requirement. "Now it empowers minority rule. That's not 'special,' it's unjust."

Over at The New Yorker, Jeffery Toobin argues that getting rid of the filibuster—alongside other reforms like admitting Puerto Rico and D.C. as states and expanding the number of seats on the Supreme Court—would be a good way for Democrats to get retribution for the confirmation of another Republican justice and pave the way for a successful Joe Biden administration to do what it pleases.

"Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool," writes Toobin. "This antidemocratic relic should be retired once and for all."

Yet in the same article, Toobin is quite candid about how the past decision to immunize Supreme Court appointments from the filibuster is the cause of Democrats' current woes.

"Democrats have few procedural tools at their disposal to delay the process," he says, noting that "under McConnell, the Republicans changed the Senate rules to abolish the filibuster for Supreme Court nominations, so he only needs a simple majority to confirm a Justice."

He's not the only current filibuster critic to straddle this seeming contradiction.

Shortly after Gorsuch's confirmation, Markey himself promised that Democrats would bring back the filibuster for Supreme Court nominations, which he argued was an important safeguard against some slim, transient majority making such a consequential decision.

"We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people who are nominated," said Markey in an April 2017 interview, according to Politico.

Senate Minority Leader Chuck Schumer (D–N.Y.) likewise bemoaned the decision to weaken the filibuster in 2017, saying on the Senate floor that "today's vote is a cautionary tale about how unbridled partisan escalation can ultimately overwhelm our basic inclination to work together and frustrate our efforts to pull back; blocking us from steering the ship of the Senate away from the rocks."

Contrast that with Schumer's answer to a question in an August radio interview about whether Democrats would abolish the filibuster if they took back the Senate in 2020: "We have a moral imperative to the people of America to get a whole lot done if we get the majority," he said. He repeated the sentiment in a Saturday conference call, reports The Hill, saying "If Leader McConnell and Senate Republicans move forward with [confirming another Supreme Court justice], then nothing is off the table for next year."

McConnel, when he was minority leader, offered similarly prescient warnings about the consequences of weakening the filibuster. When Sen. Harry Reid (D–Nev.) deployed the "nuclear option" in 2013 to prevent the filibustering of executive branch nominees and federal judicial appointments, McConnell told Democrats "you'll regret this and you might regret it even sooner than you might think."

Republicans went on to recapture the Senate a year later, and have since made a record number of judicial appointments. That Democrats are today largely lining up against the filibuster, rather than calling for its full restoration, proves Schumer's warnings about the partisan erosion of norms correct. Ship of the Senate, meet the rocky shore.

Democrats—having lost successive battles over the Supreme Court, and being favored by some projections to take back both the presidency and the Senate—are out for blood, and not keen on defending obstacles to the power that they are on the cusp of wielding.

In the immediate term, this rhetorical strategy makes sense. Asserting the value of the filibuster at the present moment isn't going to bring it back. Threatening to do away with it entirely, on the other hand, could potentially scare some Republicans from voting to confirm a new justice. In an election year, it's also potentially good politics to attack the filibuster. Promises of a less constrained Democratic Senate majority might help drive progressive turnout.

That argument cuts both ways, however. Democratic threats to brush away obstacles to enacting their agenda could just as easily motivate fence-sitting conservatives who're none too enamored with Trump to vote for him out of fear of what unconstrained Democrats might do once in power.

Another, more far-sighted argument deployed by progressives is that the filibuster is not ideologically neutral. Democrats, on balance, want to do more things with the government, and therefore are more likely to be frustrated by the filibuster.

Vox's Ezra Klein made this very point on a recent podcast about the filibuster.

"Conservatives simply want to do less and stand athwart government yelling stop," Klein said. "Legislating and being able to act within the context of American government is inherently a progressive act."

(Klein, in fairness, does acknowledge that a more explicitly nationalist Republican party in the future would have a more proactive agenda, and thus reap more gains from eliminating the filibuster.)

Matt Yglesias, also of Vox, made a related point in a 2019 essay when he argued that it would always be easier for a slim majority of progressives to enact an expansion of the welfare state than it would be for a similar-sized majority of conservatives to undo said expansion.

Progressive programs, he says, create their own constituencies whose self-interest is wrapped up in the preservation of the program. State-shrinking deregulation or spending cuts, on the other hand, do not come with the same advantage.

"If you passed a law making it easier to form labor unions, that would lead to more unionized workers, which would make it harder to pass new anti-union laws," writes Yglesias.

While Yglesias and Klein could be right about raw majoritarianism (at least in the medium term) benefitting progressives—or at least any faction that wants to expand the size of government—their case becomes less persuasive when applied to the Senate's filibuster specifically.

The Senate's membership, as progressives are often eager to point out, advantages Republicans, who are increasingly the dominant political party in rural, whiter states that contain a minority of Americans but can collectively control a majority of the Senate. Empowering majorities in the Senate through the abolition of the filibuster, therefore, will more often than not mean empowering Republican Senate majorities at Democrats' expense.

Maybe Republicans' relative lack of a proactive policy agenda would mean they'd end up doing less with those majorities. But they'd still be capable of restricting legal immigration, banning late-term abortions, and requiring social media companies to teach patriotic values (to name a few goals of the contemporary right).

One final case that Democrats currently contemplating eliminating the filibuster should consider is that those checks make politicians like Donald Trump less likely to succeed.

We live in a world of increasing negative polarization, where political factions are defined less by their positive vision and more by fear of what the other side will do with power. It's in that environment that figures like Trump can garner support despite the likely negative consequences of their policy proposals.

Conservative and Republican voters who might consider themselves Trump-skeptical can still be convinced to vote for the man for fear that empowering an unconstrained Democratic president or Congress would be even worse.

Tying the hands of whichever majority is in power makes that party's agenda harder to implement, but it also lowers the stakes of losing. That, in turn, might make voters less willing to tolerate objectionably awful behavior on "the other side is still worse" grounds.

I don't pretend to be a progressive, and support maintaining the filibuster on good old-fashion libertarian grounds: the more checks on the exercise of state power, the better. Given that the Senate filibuster will more often than not check Republicans exercising state power in the near-term, Democrats and progressives should reconsider its utility.

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  1. If politicians could engage in long-term thinking, they wouldn’t be politicians.

    1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new… after 4 years it was so hard to quit my day job but now I couldn’t be happier.

      Here’s what I do…>> Click here

    2. Maybe, but those pensions sure are sweet in the long term

      1. OK, good point, they can use the long-term thinking when they think it needful.

  2. It would be hilarious if McConnell took their advice and eliminated the filibuster, even if only for a month or something. He could justify it as showing the left what it would be like or something.

  3. creating a formidable 6-3 conservative majority

    How long are we supposed to pretend this is an actual thing? Roberts and Gorsuch have not proven to be staunch conservatives.

    The real question is, why do writers continually get away with such stupid statements that are easily disproven by looking back over just the last year.

  4. Most of the quotes and references above are from hard left socialist weenies. Does reason not have any sources other than that gutter trash?

    1. Completely baffling that they constantly refer (and defer) to Vox of all things. That means they take those people very seriously. It’s pathetic.

  5. This people just can’t seem to understand that the U.S was not set up as a majority rules nation. The senate is supposed to slow down things . The electoral collage was made to protect small states. The ‘will of the {most} people’ can be as dangerous as any other dictatorship.

    1. people just can’t seem to understand that the U.S was not set up as a majority rules nation

      The Senate was never supposed to represent ‘the people’. It is supposed to represent the individual states. That is why it was given a specific set of powers different from that of the House. Senators were not even elected by popular vote under the original scheme, but by the state legislatures. Civics literacy, even among journalists, is atrocious.

      1. I know why it was created and it should have stayed that way. The Dems want a government based on majority rules and that is dangerous. Hence forth the way the senate was created and the bill of rights. Look how the parliament in London eliminates rights on ‘popular ‘ votes.

      2. Actually, the original scheme left the method of selecting Senators to each state’s legislature but set no standard.

        State A: selection by vote of the state legislature
        State B: appointment by governor
        State C: Popular election.

    2. Their logic isn’t even consistent. They think the majority of the country is racist, and yet the advocate for systems that would give the majority more power.

  6. But…Jimmy Stewart.

  7. The Senate’s membership, as progressives are often eager to point out, advantages Republicans, who are increasingly the dominant political party in rural, whiter states that contain a minority of Americans but can collectively control a majority of the Senate.

    If you wanted to write a real article about this, there might need to be some discussion about why this is. Why is the Republican party so attractive to rural voters (ignoring your race-baiting ‘whiter’ comment)?

    And since the Senate was originally specifically designed to elevate the voice of Delaware, New Jersey, Connecticut, New Hampshire, and Rhode Island against the larger states and they are all still low population and very Blue states, you might want to stop lying about how the Senate setup favors Red states.

    1. NJ isn’t low pop. I also wouldn’t consider CT as such, but that’s arguable.

      1. CT has about 3.3 million people, which puts it right in between Oklahoma and Utah.

        If it were just a metro area it would rank somewhere between San Diego and Tampa.

        It’s a low population state.

      2. The Great Compromise that resulted in the Senate was proposed by the reps from CT. And, while I will concede that NJ is 11th in population, if the Senate were proportional, FL and NY would have more than 2x as many reps, TX would have more than 3x and CA more than 5x. 11 of 25 states with the lowest population run blue. Democrats benefit plenty from the Senate.

    2. You take a wrong turn in CT, you drive through it. They should only have half a senator.

  8. They’re losing now and you think they can lose more? They only did it in 2013 because McConnell was determined to stall ANY appointment of judges and it worked well for him. He’s a terrific Republican and probably one of the worst Senators to ever hold office.

    I truly hope they do blow it up. Add DC, Puerto Rico, split up California into two nice size Democratic states. Do whatever you got to do to fix senate fuckery. Uncap the House from its present 435 so the electoral college isn’t so atrocious. Pack the hell out of the court.

    Seriously- stop acting like the Republicans haven’t broken so much of it and that the Dems should try to tape it all back together. If it’s gonna break, at least break it your way.

    1. Get up off of your damn knees.

    2. Add DC, Puerto Rico, split up California into two nice size Democratic states. Do whatever you got to do to fix senate fuckery. Uncap the House from its present 435 so the electoral college isn’t so atrocious. Pack the hell out of the court.

      Split up Texas, Alabama, Louisiana, Kentucky, and bunch of other red states into 2 red states. Do whatever you got to do to fix the post-Democrat “fix” senate fuckery. Uncap the House from its present so the electoral college isn’t so atrocious. Pack the hell out of the (already packed) court.

      1. You don’t understand Kevin, the Republicans could never do to them what they want to do to Republicans.

        They honestly believe that. They are that fucking stupid.

        1. I think what they honestly believe if that if they make just 1 more change, fix just 1 more system, pass just 1 more law, then everything will be perfect and they will never have to worry about losing power again.

    3. Yeah because Harry Reid was so keen on approving Bush judges.

      You idiots really are incapable of understanding that you don’t always get your way. You are just spoiled, ignorant children.

    4. I think you would find uncapping the House will likely favor more conservative representatives. More purple districts equals greater opportunity for Republicans to capture those districts. Adding DC as a state defeats the purpose of why the Capital was never supposed to be a state. If we do that we should move the capital to some midwest city, so that it is more geographically centered.
      Also, if we uncap the house (which I am for) every state ought to also adopt the Nebraska model for awarding electoral college votes. That means Oregon, California and Washington will no longer be huge guaranteed votes for the Democrats and considering if you look at how many counties the Republicans win, even in Blue states such as the ones I listed, it would pretty much guarantee a solid Republican advantage. The same is true of blue states such as Illinois, Colorado, swing states such as Arizona, Minnesota, Michigan, Nevada, North Carolina, Wisconsin, Florida, Ohio, Pennsylvania and Iowa. While the reverse is true for Texas and Georgia, it isn’t as markedly. There are also solid red districts in Virginia, New Jersey, New York etc.
      Using the Nebraska model Romney would have beat Obama and Trump still would have beat Clinton. The race would have been tighter in 2016, assuming the same voter turnout (it is conceivable that allowing red districts in blue states and vice versa may have increased voter turnout and flipped a few purple districts).

  9. >>bloomed as a cherished tool of segregationists

    AOC hates her own party.

    1. AOC hates anything that isn’t AOC. She also hates herself.

      1. obviously hated History 101

        1. At least she admits the Democrats don’t want to empower minorities

          1. And she thinks a Molotov Cocktail should be garnished with a candied orange slice.

        2. How does she hate something she never experienced?

          1. Ask the incels and MGTOWs.

  10. We live in a world of increasing negative polarization, where political factions are defined less by their positive vision and more by fear of what the other side will do with power.

    [raises hand]

  11. The biggest proponents of ending the filibuster are the representatives with the smallest bladders.

  12. What 6-3 conservative majority? Who are the 6 conservatives?

  13. Yeah right. There is already a massive check on majority rule in the Senate: the fact that the majority party in the Senate was elected by fewer Americans than the minority party. That will not be the case if Democrats take the majority, at which time balance will be destroyed.

    And if they do anything but say go fuck yourself to people who would sell their own daughters to preserve their tax cuts and kill healthcare, they would be stupid.

    No thought is sweeter than two years of passing massive progressive legislation while Republicans whine about norms and process from the senate floor.

      1. You may have had it right the first time.

  14. If politicians could engage in long-term thinking, they wouldn’t be politicians.

  15. CTRL-F not found: COVID. As in the relief bill filibustered by the Democrats this month.

    They already love the filibuster — when they’re not in power.

  16. The filibuster has been whittled away to nothing since about 1976 — and it’s mostly been Democrats (who have had control of the Senate far more often than the Republicans during this time) who have been whittling away at it.

    The fact that they are calling to remove it now means that they haven’t learned their lesson at all. After all, it was Democrat Harry Reid (as Senate Majority Leader) who promised to remove the filibuster for Supreme Court justices — but it was Republican Mitch McConnell who fulfilled that promise (as Senate Majority Leader).

    I can’t help but wonder if the same thing is going to happen in the next Senate session. After all, while the Democrats are the favorite to take back the Senate, they were the favorite to keep the Senate when Harry Reid made his promise.

    At this point, I am convinced that the only way to reinstate the filibuster (which I’m in favor of, actually, but only the version that existed before 1976 — which required debate on the bill in question, and forbade the consideration of anything else in the meantime), it’s going to need a Constitutional Amendment.

    Thus, it’s likely going to need a Supermajorty Republican control of the House and Senate with the foresight that they may be in the minority again — while it’s an open question whether the Republicans will have that foresight, it’s very clear that the Democrats don’t — because otherwise the filibuster would still be here, unchanged.

  17. After 4 years of throwing ‘norms’ out the window, trumpistas cannot now complain when it returns to haunt them

  18. A real man will be honest no matter how painful the truth
    https://gist430.com

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