Senate Democrats Should Kill the Filibuster
The SAVE Act is coming up for a Senate vote soon, having passed the House back in February. On Tuesday, it cleared its first hurdle, advancing a motion to begin debate on a 51-48 vote that fell mostly along party lines; that’s well short of the 60 votes needed to clear a filibuster and ultimately pass.
This bill is probably the most sweeping abrogation of voting rights since Jim Crow. As the Brennan Center explains, it would require both voter ID and proof of citizenship to vote, as well as force the states to send their voter files to the Department of Homeland Security. Tens of millions of U.S. citizens do not have ready proof of their citizenship, and tens of millions more don’t match with the documents they do have—for instance, married women who have changed their last name.
It should be viewed as the first step toward attempted election theft—though it might be ill-judged in this case, as Republicans have come to rely on low-propensity voters who tend not to have citizenship documents or a firm grasp of election procedures.
Anyway, if Democrats can bottle up this particular bill in the Senate with a filibuster, that is arguably the right move. But if some end run is proposed—Sen. Mike Lee (R-UT) has argued for a talking filibuster that would force Democrats to talk around the clock, though Senate Majority Leader John Thune (R-SD) has so far refused—Senate Democrats should insist instead on ending the filibuster altogether. If they can’t do it now, they should do it themselves at the earliest possible moment.
That might seem like a counterintuitive thing to say when massive voter suppression is at stake. But at this point, it is highly likely that Democrats will win the House in the upcoming midterms whether or not the SAVE Act passes, and maybe even the Senate. President Trump’s popularity was already near historic lows before he started a war with Iran for no reason and touched off a global energy crisis. Gas prices are already up by more than 70 cents per gallon, and diesel is now over $5. If the Strait of Hormuz remains closed, a global recession and maybe a financial crisis are likely. (One has to credit Republican consistency, at least: If they get power, they start a pointless war in the Middle East and ruin the economy, every single time.)
Trump and the MAGA cult have done catastrophic damage to American institutions.
Even if Democrats take the Senate, under the status quo they would not keep it for long. The chamber is severely slanted toward the GOP; as Lee Drutman details, the median seat has a conservative bias of something like seven points—about the same margin of victory as Barack Obama racked up in 2008. The bias is growing over time as well. Outside of two years in the ’90s, Republican senators have not represented a majority of Americans since the 1950s, and yet they have had a majority of senators much of that time.
Trump and the MAGA cult have done catastrophic damage to American institutions. It will take sweeping reforms just to return to something approximating the functioning prior status quo of 2024. That means aggressive law enforcement to deal with the crimes that have been committed throughout the regime—which probably number in the millions at this point—but it also means passing a lot of laws to shore up the American republic.
Here’s a sketch of a moderate program to save democracy and freedom: statehood for Washington, D.C., and Puerto Rico; Supreme Court reform to break the conservative majority; confiscatory taxation on ultra-billionaires; mass breakup of corporate conglomerates, particularly in media; multimember districts for the House; and updated and strengthened protections for civil and voting rights. I could aim much higher than this, of course, but that’s about what I would call a bare minimum.
Unrigging the Senate will be necessary to give Democrats a chance of ever holding it again in the future. Court reform will be necessary for anything at all to happen, because the shameless Republican hack justices have made it abundantly clear their jurisprudence boils down to: “If a Democrat does it, it is unconstitutional; Republicans are kings who can rule by decree, unless it affects my stock portfolio, or that of the billionaires who are constantly giving me large undisclosed gifts.” In any case, these justices have obliterated their own legitimacy with Trump v. United States, for my money the worst decision in the Court’s history, one that makes such a mockery of the Constitution that it is tantamount to treason.
Doing any of that stuff is going to require scrapping the filibuster. None of the above agenda would be able to get the 60 votes that have become compulsory for anything to pass in the Senate. There is no chance whatsoever that any Republican senators will support laws to eviscerate their own party’s illegitimate power base, and there is virtually no chance that Democrats will ever again have 60 votes. Even if they did, breaking a filibuster with cloture votes eats up days and days of floor time.
The main way around the filibuster, the reconciliation process, is reserved for budget matters; none of that above agenda applies. This works fine for Republicans who just want to cut taxes and cut services, but for Democrats with a broader vision, it blocks their efforts. Unless the Congress, the primary branch of government, the only branch intended to make laws in our system, will be little more than a budgetary body for the rest of its lifespan amid a relentlessly partisan tug-of-war, the filibuster has to be eliminated to have any opportunity to realize a broader agenda (as Republicans are now figuring out).
The filibuster chills debate rather than forcing compromise. Republicans enabling a talking filibuster would allow Democrats to force votes on giving people health care, which Republicans manifestly do not want. Actually forcing debates into the open would improve democracy rather than the current process of mutually assured silence.
Just on basic principles of institutional design, the filibuster is completely ridiculous. It was created literally by accident in 1806 when senators reorganized the chamber rulebook and didn’t realize they’d deleted the procedure for ending debate. For more than a century, it was almost never used except for blocking civil rights bills. Its current form requiring a 60-vote majority for basically everything except reconciliation bills—an obstruction that can be triggered by any Senate staffer making a single phone call—only dates back to about 2007. It’s pointless, undignified, an affront to the very idea of democratic self-rule, and has done great damage to both the Senate and House. It’s like someone tying his own shoelaces together and then gravely insisting that he has to hop everywhere no matter how many times he falls down and knocks out his teeth.
The common objection to scrapping the filibuster is related to moments like this: It enables the minority to stop bad things like the SAVE Act. But that only locks in a status quo that is working abominably. The filibuster is also a democracy-destroying tool. It makes it virtually impossible for politicians to keep campaign promises, while diffusing accountability for why those promises cannot be kept. A democracy involves a contest between competing visions for governance, predicated on the idea that the winner can actually implement that vision, and then the public gets to render a verdict on how it works out. This isn’t how our country works with the filibuster, making everyone (rightly) believe that government cannot work in the public interest.
As Alex Pareene once wrote regarding the various ways in which both parties throw sand in the gears of Senate procedure: “What these strategies rely on, almost uniformly, is a willingness to abuse rules that were not intended to allow a minority to block everything but that now serve only that purpose.”
America can be fixed. All it will take is control of Congress, the presidency, and the will to power. That starts with making the Senate work like every other legislative body in the world.
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