Democratic Candidates Need to Call to Abolish the Filibuster

Bernie Sanders, Cory Booker, and Kirsten Gillibrand have all defended the Senate's filibuster. But any progressive agenda relies on it being ended.
Author:
Updated:
Original:
Cory Booker, Bernie Sanders, Kirsten Gillibrand

From left to right: Senators Cory Booker, Bernie Sanders, and Kirsten Gillibrand.

Some 21 months out of the election, Democratic candidates for president have coalesced around a platform of major public spending, robust tax increases, expanding social services, and sweeping regulatory initiatives—a far cry from the policy proposals of past candidates in the party. Most of the field who've announced support some version of Medicare for All and a sweeping climate policy, and many—Bernie Sanders, Cory Booker, Kirsten Gillibrand, etc.—vouch for a federal jobs guarantee.

But the question of how each candidate will go about ushering each policy through Congress remains a big one, particularly given another wonkier policy plan the candidates are in agreement on: preserving the Senate's filibuster. In the upper house of Congress, any coalition of 41 or more senators can invoke the filibuster to keep debate on certain bills open interminably, effectively ending their hopes of passage. Without 60 votes, a so-called supermajority, the passage of progressive legislation is unlikely.

Yet both centrists and progressive stalwarts up and down the ticket have praised the filibuster. Current New York Senator Gillibrand told Pod Save America that "if you're not able to get 60 votes on something, it just means you haven't worked hard enough." New Jersey Senator Booker was even more sanguine about the rule, promising to "personally resist efforts to get rid of it." Even Sanders balked at the notion of striking down the rule, telling CBS he's "not crazy about getting rid of the filibuster."

Of the entire Democratic field, only South Bend Mayor Pete Buttigieg and recent entrant Jay Inslee, the governor of Washington, have unequivocally condemned it. "The filibuster will essentially doom us to a situation where we'll never be able to fight climate change," the latter put it.

"Used properly, filibustering can promote open debate and moderate outcomes," says Gregory Koger, professor of political science at the University of Miami. Despite its weaponization in the Mitch McConnell era, and its wide unpopularity—even President Donald Trump has criticized it—the filibuster may be holding the very notion of legislative debate together. "If the filibuster is abolished, what guarantee do we have that major legislation will be seriously debated?"

Though the filibuster may be one of those sacrosanct procedures upholding norms in the Senate, it is not mandated by the Constitution, and repealing it would be simple—requiring just a majority vote on a rule-change proposal. While drafting the Constitution, the framers considered installing a supermajority rule, but decided against it, deeming it an unnecessary hurdle to governance. By enabling such minority control, the "principle of free government would be reversed," wrote James Madison in Federalist No. 58. Alexander Hamilton agreed, warning that supermajority rule would result in "tedious delays."

In a bizarre twist of fate, it was Aaron Burr, the man who shot and killed Hamilton in a duel, who was responsible for the filibuster's creation. Some 15 years after the rules of the Senate had been established, Burr, giving his farewell remarks to the chamber, recommended that the Senate get rid of its "previous motion question," which allowed a majority vote to end debate. His peers agreed to the suggestion, not realizing the impact of that decision. "And once it's gone, it takes some time for leaders to realize that they can't cut off debate anymore," says Sarah Binder, author of the Politics of Principle: Filibustering in the United States Senate. "It takes years before anyone figures out that the filibuster has just been created."

Today the filibuster is used for partisan ends, and has, in part, ensured that Congress now passes far fewer bills than at any point in the 20th century. The filibuster proved insurmountable for Obama-era attempts to legislate on climate change and immigration reform, to the point that the former president eventually said the rule makes it "almost impossible" to govern.

Mounting frustration over the procedure has, in recent years, even resulted in its elimination for certain proceedings: Citing the incessant wave of Republican filibustering through President Barack Obama's first term, Majority Leader Harry Reid and the Democrats exempted lower court judicial and executive nominations from the rule in 2013. In 2017, in what might be seen as one of his signature political maneuvers, McConnell, with Republicans in control of the chamber, did the same for Supreme Court nominees, laying the foundations for the appointments of Justices Neil Gorsuch and Brett Kavanaugh, neither of whom received the once-required 60 votes.

It would be unusual for a presidential primary to concern itself largely with Senate procedure, but for the Democratic agenda, abolishing the filibuster permanently may prove essential. Currently, Democrats hold 47 seats in the chamber. It's possible, on the strength of another Blue Wave, that they will win back a majority of seats, despite an unfavorable-looking electoral map. But the likelihood of winning 60 seats is basically nil.

And despite hesitation from leading presidential candidates, abolishing the filibuster is exactly what should be done. The argument put forward by Gillibrand and Booker that the filibuster is somehow a meritorious standard, requiring certain industriousness to overcome, is simply incorrect. Recent history shows that no amount of elbow grease will compel Republican support for any Democratic agenda item: The compromise Obamacare proposal received zero Republican votes (and, in fact, the version that passed the Senate only did so because Pennsylvania Republican Arlen Specter switched parties, giving the Democrats a brief supermajority during which they passed the version of the bill that eventually became law).

And the fear that a filibuster-free chamber would empower some radical Republican cartel to enact a Conservative agenda, were it to win a future majority or hold sway in the upcoming session, is also unwarranted. The recent Obamacare repeal campaign died not because of Democratic filibuster, but because the proposal was so reviled that it couldn't even accrue 50 votes.

The filibuster has become the least democratic component of the least democratic chamber of the federal government—a chamber in which, according to one Washington Post estimate, two-thirds of the population will be represented by just 30 percent of members by 2040. Right now, lawmakers representing less than 21 percent of the American populace hold the ability to use the filibuster to functionally veto even the most popular proposals, like Medicare for All, which recent polling indicates 70 percent of Americans support. With Republicans having recently lost the House, and likely to sustain losses in the Senate as well, that antidemocratic tactic is an explicitly partisan asset.

Ultimately, a presidential call for abolition of the filibuster in the Senate would dovetail readily with the political ambition of the newly elected Democratic House majority. Their first bill, H.R.1, with its signature items such as campaign-finance reform, the reestablishment of voting rights, and establishing election day as a national holiday, proposed simple measures to make the political arena more "small d" democratic. Abolishing the filibuster would serve the same ends. And given the polling popularity of the new Democratic agenda, like Medicare for All and the Green New Deal, that's exactly what will pave the way for passage.

Ending the filibuster is far less rhetorically captivating than those big-ticket items, but without it, those proposals, which critics have called unrealistic, would be nearly impossible.

ps-ideas-logo-alone

Pacific Standard's Ideas section is your destination for idea-driven features, voracious culture coverage, sharp opinion, and enlightening conversation. Help us shape our ongoing coverage by responding to a short reader survey.

Related