the national interest

Either Biden Will Kill the Filibuster, or the Filibuster Will Kill Him

The looming threat. Photo: Mark Reinstein/Getty Images

Republicans assert as a matter of course that, should Democrats win full control of government, they will eliminate the legislative filibuster and grant statehood to D.C. and Puerto Rico. Joe Biden has been much more circumspect, professing his hope that Senate Republicans will have a change of heart and negotiate in good faith to pass important elements of his program.

Of course, both sides have an incentive to shade the truth. Republicans want to motivate their supporters by emphasizing the stakes of losing the Senate and the White House. Biden wishes both to disarm nervous Republican crossover voters, and to maintain his idealistic pitch that he can heal American divisions by bringing the parties together.

But I suspect it is not just spin that is causing the two parties to provide such radically opposed assessments of Biden’s intentions. Republicans believe Democrats will maximize their power because that is what they would do. To not allow Mitch McConnell to veto Joe Biden’s agenda and maintain the Senate’s massive underrepresentation of minorities and Democrats out of fealty to a doomed tradition is the sort of abnegation of power Republicans cannot imagine. But Democrats, or at least some of them, harbor a genuine nostalgia for the bygone days of bipartisanship. Their belief in restoring the world they grew up in is real, as is their fear of having real power and accountability.

My colleague Gabriel Debenedetti has a long, detailed report on what Biden and his allies will do about the filibuster if they win the election. It’s the best and most thorough explanation of a decision that will probably determine the success or failure of a Biden administration that I’ve read, and the evidence it supplies is discouragingly mixed.

Delaware senator Chris Coons, a close Biden ally, articulates what seems to be the candidate’s own perspective. “When we get to January 21, the day after the inauguration, there will be a simple choice Republicans and their leader will need to make,” he tells Debenedetti. “Will they be determined to keep Joe Biden from getting anything done? If that’s the case, we’ll need to make some very hard choices about how we’re going to get anything done.” However, he says, “I doubt that’s going to happen.”

The actual chance that will happen is roughly in the neighborhood of 100 percent. Every incentive faced by every Republican will be to oppose the Biden agenda in its entirety. To the extent they cooperate with the administration, they would enhance the president’s stature as a bipartisan deal-maker and help accelerate the recovery — both of which would make voters less likely to restore Republicans to power.

This dynamic has governed the last two Democratic presidencies. Even though both Bill Clinton and Barack Obama exerted themselves to win bipartisan support for their policies, and pursued moderate policies that, before they took office, would have seemed like promising venues for bipartisanship, Republicans followed a course of total opposition. Even when Clinton passed a deficit-reduction bill that cut spending and a crime bill (the one Donald Trump currently depicts as draconian), and when Obama pursued Mitt Romney’s health-care plan or John McCain’s cap-and-trade bill, the winning Republican play was to lock the caucus into total opposition.

The fashionable interpretation by pundits and the Washington Establishment during both the Clinton and Obama presidencies was that Republican opposition reflected, at least in part, a shortcoming in Democrats’ negotiating skills. Clinton and Obama were both decried constantly in the press as too pedantic, too partisan, or too stubborn to cut deals with the other side, as leaders had done in the good old days.

At least some of the people around Biden seem to believe this. “Though he is loath to criticize Obama, many in his inner circle were driven crazy by the former president’s unwillingness to indulge individual lawmakers’ wishes or quirks in the service of negotiating,” reports Debenedetti, “Now, for all Biden’s talk about FDR, it’s become fashionable for Biden allies to quietly wonder if Lyndon Johnson might be a more accurate comparison for him.”

This conviction misses the degree to which polarization has completely changed the incentive structure facing members of Congress. It is no longer the case, as it was in Johnson’s era, that a recalcitrant lawmaker can be lured onto a big-ticket bill by funding a bridge or a school in their district. Almost every Republican’s biggest risk of defeat lies in losing a primary. The local-news value of the ribbon-cutting scene with local dignitaries has plummeted. The cost of being criticized on Fox News is more costly than a dozen bridges. Even Democrats like Mary Landrieu and Ben Nelson discovered that the old practice of negotiating special deals for their states in return for supporting Obamacare in 2009 had become a political albatross, not an asset, in the modern landscape.

Republicans would surely pretend to negotiate with Biden. This was the method they used to run out the clock on Obama’s legislative majority. McConnell allowed key Republican senators to negotiate with Democrats, but never permitted them to close a deal. Any concession would always be met with more demands. Any agreement required more time for study. Eventually Obama got Senate Republicans to admit that there was no bill they were willing to sign at all. The ploy was to string them along, bleed out the calendar, allow public frustration at the process to eat away at the Democrats’ popularity, making it harder for them to vote for anything in the end. To allow the exact same Republican leader to fool them with the exact same trick would be the proverbial definition of insanity.

Phil Schiliro, Obama’s first director of legislative affairs, offered a different defense of maintaining the legislative filibuster. “The Affordable Care Act wouldn’t exist today if there were no filibuster,” he argued. This is demonstrably false. The filibuster didn’t stop the repeal of Obamacare. When Trump came close to repealing Obama’s signature law, he used budget reconciliation to defund it. Reconciliation is a limited vehicle for passing fiscal legislation, which allows changes in taxes and spending, but not any changes to regulation, with just 50 votes. (Of course, the existence of this method is another reason Republicans like keeping the filibuster: They can cut taxes or defund social programs with 50 votes, but establishing a major new program requires 60.)

Republicans failed to repeal Obamacare because they couldn’t come up with any replacement plan that didn’t inflict massive suffering on their constituents. They came as close as 49 Senate votes to defund the law. The filibuster had no role in saving it.

Schiliro continues, “If the rule hadn’t applied to legislation under Trump, Republicans easily could have cut funding for Planned Parenthood and Social Security, rolled back even more financial-industry regulation than they did, further loosened restrictions on gun access, fully reversed environmental protections like the Clean Water Act, and, most prominently, eliminated the Obama era’s central accomplishment.” Would they, though? All these maneuvers would put the GOP on the wrong side of the kind of landslide public opinion split that opened against them during the Obamacare-repeal debacle — which also happened to be the nadir of Trump’s polling. They would court vicious backlash had they tried any of these moves.

It is true that Republican presidencies over time will accomplish somewhat more in a world where legislation can pass with 50 votes. They won’t pass nothing, forever. The question is whether a system that makes passing big laws extraordinarily difficult is better either for American government in general or the Democratic Party in particular. The United States already has more veto points in its system than almost any other major democracy, even without adding a supermajority requirement. In the long run, progressive ideas have done more to shape the face of American government than conservative ones. If you wiped off 50, or 100, or 150 years of legislative change, you’d eliminate far more progressive reforms than conservative ones.

A system that makes major legislation almost impossible is not ideologically neutral. It’s conservative. This is why Republicans are perfectly happy to give up whatever limited chances they might have to pass non-fiscal legislation with their majorities in order to inhibit Democrats. Most of what Republicans want to do — confirm judges, cut taxes, defund entitlements — can already be done with a majority.

Would a potential President Biden actually cripple his own administration in order to curtail a future Republican one? Probably not. Debenedetti finds sources arguing for eliminating the filibuster, too. But taking decisive action to allow majority rule requires 50 Senate votes that will be hard to achieve even under the best circumstances. That the possibility of allowing the next Democratic administration to be stillborn is even being considered seriously is alarming enough. And the more limited prospect that Biden might be sucked into another McConnell trap of negotiations to nowhere, cutting down the two-year window to pass reforms by months, is altogether too realistic.

Ultimately the only thing that can pass is what Democrats can find 50 votes for. It won’t be the Bernie agenda, or even the Biden agenda. The 50th Democratic vote will be well to the right of Biden’s aggressive platform. But it will be something. The 60th vote will be for nothing at all.

Either Biden Will Kill the Filibuster, or It Will Kill Him