Senator Kyrsten Sinema announced on the Senate floor Thursday that she is in complete agreement with her Democratic colleagues on the need to enact voting-rights legislation. She opposes state-level Republican laws designed to winnow the electorate on (small-d) democratic principle. “These state laws,” she said, “have no place in a nation whose government is formed by free, fair, and open elections.” She also endorsed the larger belief that the authoritarian danger remains alive, noting, “Threats to democracy are real.”
But these concessions merely formed the to-be-sure passages in her speech, which were devoted to reiterating her support for the legislative filibuster. That 60-vote threshold allows the minority to block voting-rights laws but, strangely, not changes to taxes and spending and also not, even more strangely, lifetime judicial appointments. Sinema depicted the filibuster as a vital bulwark of democracy itself, warning that if a demagogue were elected, the 60-vote limit might be the only thing standing between them and democracy.
“Some who undermine the principles of democracy have already been elected,” she noted, warning that “eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy from threats in the years to come.”
Here she is reiterating an argument Mitt Romney has made repeatedly as well. If Trump wins office again, maybe the filibuster will be the only thing standing between Democrats and the end of the republic.
This argument for the filibuster has intuitive appeal. It serves as a brake on the majority’s power, and you can at least theoretically imagine how it could thwart a demagogic president’s authoritarian designs. But if you think about the situation more closely, the argument breaks down and its absurdity becomes quickly evident.
Sinema’s warning of recently elected leaders “who undermine the principles of democracy,” an unmistakable reference to Trump, invites a recollection of the former president’s tenure. Trump had two years in which his party controlled the House and Senate but not a 60-vote supermajority — the exact, indeed only, arrangement in which the filibuster could thwart his designs.
But how many times did the filibuster stop him from carrying out an abuse of power? Not one. You can go through a long list of Trump’s norm-shattering behavior without finding a successful filibuster. Sometimes he appointed unqualified or pliant cronies to executive-branch positions, but those votes already have a 50-vote threshold. Other times, he ignored norms or laws, but he didn’t need Senate approval to do that. In theory, Trump needed Senate approval to build a border wall in the South, but in practice, he just did it anyway through executive action.
Trump’s most dangerous powers by far involved his control of the military and the Justice Department. Many things held him back from more successfully weaponizing those powers, but the filibuster wasn’t one of them.
Is it possible a second Trump administration would turn to legislation as a vehicle for its authoritarian impulses? Theoretically, yes, but such a scenario would require a fantastical combination of factors. Future Senates of course can change their rules anytime they want, and a Senate happy to pass a dictatorial law would presumably take that step. Imagine having more than 50 senators who would be willing to vote for the Send the Libs to Work Camps law, but unwilling to change Senate rules to enact it. Oh, also, this law would have to be able to survive legal challenge.
So yes, in a world in which a Senate majority is willing to enact dangerous authoritarian powers, the courts are unwilling to block it, but the Senators aren’t willing to fiddle with Senate rules to do so, then the filibuster would be an important bulwark against autocracy.
What’s more, Sinema’s premise that the Senate filibuster is a bulwark against authoritarian abuse reflects a peculiar right-wing conceit. Authoritarian rule is hardly an imaginary danger in America. For most of American history, the South operated along authoritarian lines, preventing Black Americans from voting and enforcing the social hierarchy through state-sanctioned violence.
Far from preventing this authoritarian system, the filibuster is what kept it in place. Southerners portrayed the filibuster as a bulwark of freedom, casting the federal government as the sole threat to liberty. Sinema’s argument that the filibuster prevents tyranny echoes that assumption, by ignoring the possibility states themselves might pose the largest threat to democracy, and that Washington’s ability to act might safeguard it.
To be clear, that is not Sinema’s explicit belief. She abhors the voting restrictions imposed by Republican governments, but simply believes federal action to guarantee voting rights would somehow enable even worse abuse.
The Republicans are, at least, more consistent in their thinking. They uphold states’ rights in theory while supporting the practical ability of states to impose partisan voting restrictions. Whatever the morality of their vision, its conception of limiting federal power and its ambitions of states to exploit it are aligned perfectly.
Sinema, on the other hand, is simply confused.