The very outdated filibuster rule must go. Mitch M, go to 51 votes NOW and WIN. IT’S TIME! Tweet: Donald J. Trump July 29, 2017
After sweeping last fall’s elections, Democrats want desperately to deliver on Joe Biden’s ambitious legislative agenda. However, a Republican filibuster stands in their way.
The filibuster is a Senate rule that permits each Senator the right of unlimited debate – which prevents the bill from passing. If 60 Senators agree to ‘cloture’, this ends the debate, and the bill can proceed. In other words, a Senator, or a small group of Senators, can effectively block the actions of the majority party. Given the Senate’s present 50-50 party split, it’s difficult to muster 60 votes.
Democrats are in fact frustrated and call for elimination of the filibuster. They argue elections have consequences. And the filibuster thwarts enactment of policies that a vast majority of voter’s support. They say the filibuster is also outdated, a Jim Crow relic that weakens democracy.
After six months into his first term, Donald Trump felt similarly and urged Senate Major Leader Mitch McConnell to abolish the rule. The fact that Democrats and Trump seem to agree draws attention to the considerable hypocrisy that consumes filibuster politics. It also hints at why neither party will in fact eliminate the filibuster.
Let me explain.
Balance of Power in the Senate
In 1932, Democrat Franklin D. Roosevelt crushed incumbent Herbert Hoover and marked the beginning of an era of Democrat dominance – the New Deal period. During this time, Democrats enjoyed large majorities in the Senate, averaging a 30-plus seat advantage over Republicans – see graph below.
The dominance continued in the 1960s and 1970s. President Lyndon Baines Johnson advanced the Great Society programs aimed at eliminating poverty (Medicaid, Medicare, Welfare, Food Stamps) and racial injustice (Civil Rights Act of 1964 & 1968, Voting Rights Acts of 1965). Southern Democrats frequently used the filibuster to block the civil rights legislation – and at that time 67 votes were needed to overcome the filibuster. A significant number of Republicans were therefore required to secure passage.
By the early 1990s, the Democrat seat advantage disappeared. Instead, intense party competition prevailed. Partisan power now trades back and forth – labeled Pendulum Politics by political scientist Lee Drutman. Neither party can control the Senate for long. In the last 20 years, three election cycles (2000, 2006, & 2020) produced an even partisan split. The Senate has never experienced such narrow knife’s edged partisan competition.
A destructive loop
In Pendulum Politics, every election can produce a new Senate majority. For example, in 2022 Republicans need only one seat to win back the Senate. The stakes are exceptionally high, and parties have little incentive to cooperate. Why compromise when you can hold out and wait for the next election? The minority party portrays the majority as ineffective and incompetent. And it increasingly uses the filibuster (or the threat of a filibuster) to block majority legislation.
The majority party responds by constructing legislation in a top-down, behind closed doors fashion – effectively by-passing minority lawmakers. They use hardball tactics to evade extended debates and employ strong-arm maneuvers to advance bills. Their actions seem justified. After all, the minority party refuses to engage honorably.
The loop repeats. The no-compromise mindset grows and seeps into nearly every aspect of the legislative process. Cooperation is unacceptable because crushing the enemy and winning is the point. Campaign incentives replace governing.
And around and around we go.
A way through for the majority?
In recent years, budget reconciliation has been the preferred route to circumvent the filibuster. Reconciliation is a method designed to expedite passage of annual budgetary legislation in the Senate. It allows Congress to enact legislation on taxes, spending, and the debt limit with only a simple majority in the Senate – thus, avoiding the threat of a filibuster.
However, not all bills can be considered for reconciliation. There are restrictions which are outlined in the “Byrd Rules” and the Senate parliamentarian makes the final call on what can be considered reconciliation.
Twenty years ago, George W. Bush used reconciliation to win passage of significant tax cuts – at that time the Senate was divided 50-50. Barack Obama used reconciliation to pass the Patient Protection and Affordable Care Act. Donald Trump used reconciliation to enact the Tax Cut and Jobs Act. And, finally, Joe Biden employed reconciliation to advance the American Rescue Plan. Not one of these bills achieved meaningful bi-partisan support
Generally, laws that endure are shaped by conventional legislative processes that include significant bi-partisanship. In contrast, reconciliation is a limited, partisan quick fix tactic that includes considerable risks.
For example, signature Democrat policies such as voting rights, gun control, economic inequality, and racial injustice are extraneous to the budget. Therefore, reconciliation cannot be used for these issues.
In addition, Congress can pass only 2 reconciliation bills in a calendar year – standard practice has been one. The majority must agree and prioritize which items they wish to pursue with reconciliation.
Reconciliation also challenges the idea of unity and bi-partisanship. Recall, Biden successfully appealed to Independents, Moderates, and Suburbanites with a strident centrist message. Reconciliation may repel Independent and Moderate voters. After all, they did not vote for a partisan agenda and may abandon Democrats in the next election – Morris P. Fiorina’s excellent book, Unstable Majorities demonstrates this point.
Finally, reconciliation can be used to repeal vulnerable legislation. Bills passed by slim partisan majorities stand-out as a targets for newly elected administrations. Using reconciliation, Republicans narrowly failed to repeal the Affordable Care Act in 2017.
No one wins
The parties do recognize they will soon lose power. Consequently, Democrats argue now is the time to strike. Secure passage of as much legislation as possible before the inevitable Republican takeover. The most efficient way to do this is to kill the filibuster.
But myopic thinking like this created the frustrating loop mentioned previously. By focusing so narrowly on Republican obstruction, Democrats will fail to recognize potent lessons drawn from the past.
For example, during Barak Obama’s first term, Republicans filibustered his federal court nominations – a historically high number of nominees were blocked. Frustrated, Senate Majority leader Harry Reid pushed for and passed the so-called nuclear option. The measure eliminated the 60-vote filibuster rule for federal court nominations and replaced it with a majority vote. After this change, nearly 90% of Obama’s federal court nominations were confirmed.
Problem solved. Democrats stopped a decades long slide in confirmation rates.
But what appeared brilliant in 2013, turned out to be a liability in 2015. Republicans won back the Senate in the 2014 and immediately hammered Democrats with the nuclear option. Obama’s confirmation rates plunged to historic lows.
Moreover, liberated by Reid impulsivity, Majority Leader Mitch McConnell took filibuster politics a step further. McConnell identified Reid’s invocation of the nuclear option in 2013 as an important Senate precedent. This enabled McConnell to apply the nuclear option to Supreme Court nominations. Senate Republicans were then able to confirm 3 conservative Supreme Court justices.
Democrats howled, but the warning signs existed. If you fiddle with the filibuster, no one wins.
If you are a Democrat, consider two questions. First, is passage of a voting rights bill worth a future 55-seat Republican Senate majority that advances a national ban on vote by mail or mandatory Voter ID laws? Second, is a sprawling infrastructure bill a fair trade for corporate tax cuts, permissive gun laws, or a border wall, and restrictions on abortion access?
Kill the filibuster today and tomorrow there will be reprisals.
I’m betting Democrats keep it
Clearly, as the data show, there is no such thing as a permanent majority. For the next election, odds favor Republicans. Two year after that, Joe Biden may be defeated, and Republicans will again enjoy the trifecta of power.
Like Democrats, Republican majorities will be tempted to kill the filibuster and WIN BIG now. They too will say elections have consequences and the majority should be able to work its will. Like Republicans, Democrat minorities will strongly defend the rule. They too will aggrandize minority rights and consider the filibuster a needed protection against an increasingly hostile majority.
Ignore the hypocrisy, politicians’ positions are situational – that never changes. But count on this: The filibuster will persist because both sides vividly remember electoral defeat. And they both actually want to keep the rule to protect their own interests and block the majority party.
In addition, Senators benefit from the Senate’s lofty status. The filibuster represents genuine political influence and compels widespread respect. It distinguishes the Senate from the House by giving every Senator extraordinary political power – only matched by the president’s veto power. While efforts to remove the filibuster arise from majority party frustration, individual Senators must vote to eliminate it. They will not.
Senators will not cede exclusive and substantial power for short-term party gains. Republicans resisted the temptation under Trump and Democrats will ultimately resist as well. After all, Senators, whether Republican or Democrat, do not want to be regarded as mere House members.
Former Democrat Senate Majority leader George Mitchell speaking to members of the Senate as part of a leader’s lecture series sums it up well:
But I must admit now that when I was majority leader, I didn’t always enjoy unlimited debate. There were times when I was frustrated by the ease with which the Senate rules can be used for obstruction. But with time and distance comes perspective.
So my first point is that the right of unlimited debate is a rare treasure which you must safeguard. Of course, it can be, and it is, abused. But that is the price that must be paid, and the privilege is worth the price.”