filibuster reform

Senate Democrats to Consider Using Power to Pass Laws If Elected

The revolutionary vanguard. Photo: J Scott Applewhite/AP/Shutterstock

Over the past six months, life in America has become incalculably worse — but the prospects for modestly improving it through politics next year have gotten considerably better.

At the start of this year, America’s unemployment rate was near half-century lows, and Donald Trump’s odds of reelection were high (according to the internet’s gambling addicts, anyway). With the economy booming, blue America feuding, and the Electoral College giving the president a three-to-five-point head start, there was good reason to fear that our unimpeachable president was poised to “keep America great” for years to come.

And anyhow, even if a Democrat managed to narrowly oust Trump in 2021, his or her prospects for actually governing looked grim. The party needed a net gain of three Senate seats to capture the upper chamber — and thus, to enable its president to appoint judges and cabinet officials without Mitch McConnell’s permission. And that task looked more than formidable. After all, Doug Jones’s odds of beating a non-ephebophilic Republican in Alabama were slim. So Democrats would likely need to flip at least four seats — including multiple in red states — to put Chuck Schumer in charge.

Finally, even if Democrats somehow threaded that needle, they would still need to overcome the most fundamental obstacle to their legislative agenda: themselves.

Or, more precisely, their Senate caucus’s mindless reverence for the filibuster.

America’s legislative institutions are riddled with choke points. To get a bill into law, advocates must get it past multiple committees, both chambers of Congress, a president’s veto — and, in some cases, a Supreme Court review. Our republic’s founding aristocrats established this unwieldy legislative process because they had little faith in popular democracy and wanted to constrain the capacity of majorities to dominate minorities; specifically, the minorities of large property-holders in states throughout the union (and not, you know, the racial minorities whose bodies and/or land those folks claimed as property). But the founders still thought that the Senate should be able to approve legislation by simple majority. Even to the 18th century’s unabashed skeptics of popular sovereignty, adding a supermajority requirement to the upper chamber on top of all the system’s other obstacles to policy-making seemed like overkill.

And for the bulk of America’s existence, the Senate heeded this wisdom. Although the filibuster has been with us for nearly two centuries, the de facto, 60-vote requirement for all major bills in the Senate has been around for little more than a decade. And yet, despite the fact that it is within the power of any 51 senators to abolish the legislative filibuster, Democrats refused to avail themselves of this authority in 2009. Instead, the party decided that preserving an unconstitutional, anti-democratic norm was more important than liberating 11 million undocumented Americans from the threat of deportation, or imposing new regulations on carbon emissions, or bolstering the labor movement, or enfranchising D.C. residents, or establishing a public health insurance option, or enacting myriad other vital reforms that (ostensibly) had the support of 51 Democratic senators.

As of February 2020, Chuck Schumer’s caucus was promising to repeat this performance the next time it took power. Back then, Delaware senator Chris Coons was warning that making the Senate more democratic would mark the death of our democracy, telling Vox, “You know what happens when you fight fire with fire? You burn the house down.” Meanwhile, Joe Manchin — likely a pivotal vote in any razor-thin Democratic majority — said that he hoped his party “would not ever, ever consider doing away with the filibuster, which is basically the whole premise of the Senate.” Even self-styled political revolutionary Bernie Sanders declined to endorse filibuster abolition full stop, preferring to champion a Rube Goldberg scheme for nullifying the 60-vote threshold while keeping it formally in place.

But a funny thing happened on the way to another four years of certain gridlock; or, rather, a catastrophic thing did.

Four months, one pandemic, and 128,000 U.S. coronavirus deaths since Coons disavowed filibuster abolition, America’s political landscape has been transformed. Joe Biden has opened up a double-digit lead over Trump in national surveys, while early polls show Democratic candidates leading Republican incumbents in five separate Senate races (Maine, Montana, North Carolina, Colorado, and Arizona). Most remarkably, over the past week, key Democrats have signaled that — if they secure the White House and both chambers of Congress next year — they will strongly consider using their power to pass laws.

“I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Chris Coons told Politico last week. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”

Coons is one of the Senate’s foremost procedural conservatives. In 2017, he organized the drafting of a bipartisan letter calling on the upper chamber’s leadership to keep the filibuster in place. But the Delawarean is also a close Biden confidant. And, by all appearances, the presumptive Democratic nominee has sent word that he would like to actually govern in 2021.

After all, as HuffPost notes, the Democrats’ leading Senate candidates have all either endorsed abolishing the filibuster or else signaled their openness to doing so if GOP obstruction forces their hands. Considering that Schumer handpicked most of these candidates — and that they have little electoral incentive to pander to the infinitesimal “anti-filibuster” voting bloc — their messaging likely signals the will of their party’s leadership.

But the clearest indication of a sea change in the Democratic Party’s attitude toward procedural radicalism may come courtesy of Joe “just barely a Democrat” Manchin. Asked about progressive senator Jeff Merkley’s push for eliminating the filibuster, Manchin told The Hill Thursday, “I just heard they started talking and I’m interested in listening to anything because the place isn’t working.”

To be sure, there are still some stragglers in Chuck Schumer’s caucus. It might be safe for a West Virginia senator like Joe Manchin to entertain arguments for disempowering a future GOP minority. But that’s a riskier proposition for Democrats who represent conservative states like [checks notes] California.

“I’ve been here for 26 years [and] found it stood well for the body,” Golden State senator Dianne Feinstein said of the filibuster to reporters last week. “If it’s not broke, don’t fix it.”

The millions of undocumented immigrants who spent the past three and a half years living in fear of a terroristic immigration enforcement apparatus, and the past three months without access to basic social supports in the middle of pandemic — all because Democrats let the filibuster’s existence hamper the swift enactment of its top agenda items during Obama’s first two years in office — might disagree with Feinstein’s assesment.

Alas, Dianne is not alone.

Angus King, the Maine independent who caucuses with the Democrats, told The Hill that scrapping the filibuster “would be a huge mistake.” After all, “if we didn’t have the 60-vote rule today, the ACA would be gone.”

King speaks to a legitimate concern here — eliminating the filibuster would make it easier for Republicans to enact baleful reforms. And since the existing Senate map gives the GOP a structural advantage in the upper chamber, it would arguably behoove Democrats to preserve minority rights in the body.

And yet, the precedent King cites to substantiate such fears actually serves to mitigate them. It is not, in fact, true that the filibuster saved the Affordable Care Act. To the contrary, McConnell failed to get so much as 50 votes for a watered-down version of Obamacare repeal that would have left its Medicaid expansion intact.

If Mitch McConnell believed that abolishing the filibuster was in the long-term best interest of his party and its donor class, ethical scruples would not have prevented him from scrapping it. The fact that the legislative filibuster remains in place — contrary to Donald Trump’s wishes — reflects the GOP’s awareness that the supermajority requirement favors conservatism. Repealing social-welfare benefits once they are in place is exceptionally difficult, with or without a filibuster. George W. Bush’s plan for Social Security privatization, like Trump’s for Obamacare repeal, failed because public opposition was overwhelming, not because Senate procedure foiled their popular plans. By contrast, a wide array of proposals for expanding social benefits boast majoritarian support, but are nigh impossible to implement thanks to the combination of the Senate’s overrepresentation of conservative-leaning, white, rural states, and its newfound 60-vote threshold for all significant legislation. Which is to say: The filibuster does more to preserve America’s exceptionally regressive political economy than it does to thwart the GOP’s efforts to render that political economy even more regressive.

It may take more than the present crisis to make King, Feinstein, and other straggling Democrats see the light. But the caucus’s collective attitude toward filibuster reform is exponentially more favorable now than it was mere months ago. Which is remarkable given that Democrats remain in the minority. If Manchin is willing to entertain filibuster abolition at present, it isn’t that hard to imagine the entire caucus getting onboard in a context where Joe Biden is president, Chuck Schumer is Majority Leader, and Senate Republicans are obstructing much-needed, deeply popular economic relief legislation.

If Democrats do win power in 2021, and then give themselves permission to use it, they could accomplish an awful lot. Biden is no Bernie Sanders, of course. His agenda is likely to disappoint progressives, no matter what the Senate’s rules are. But the prevalence of divided government and procedural obstacles have created a giant backlog of incremental reforms with broad Democratic support — among them, a $15 minimum wage, paid family leave, D.C. statehood, a public health insurance option, a pathway to citizenship for the undocumented, and increasing Social Security benefits. What’s more, if America is still dogged by high unemployment and weak private-sector demand in 2021 — which looks increasingly likely — then moderate Democrats’ ideological aversion to massive public investment will be muted. As the past three months in Capitol Hill have demonstrated, in a crisis, everyone’s a Keynesian. If corporate America won’t supply the capital necessary to put people back to work, Uncle Sam will have to fill that void. And with Democrats in power, such deficit spending could take the form of massive investments in green infrastructure and technology.

A lot can happen between now and November. The presidential race is likely to narrow. And even now, the battle for Senate control is neck and neck. So, the safe money still says that next year will not bring a historic wave of (moderately) progressive reform. But that scenario is more plausible now than it’s ever been.

Democrats to Consider Using Power to Pass Laws If Elected