Evaluating the Filibuster in Light of Political Uncertainty

David Super

      In 2021 and 2022, with Democrats holding the White House and slender majorities in both houses of Congress, eliminating the filibuster became an article of faith among progressives.  Those of us that warned against doing so were pilloried as dim, backwards, or impediments to progress.  This relentless pressure persuaded Senate Majority Leader Schumer, who surely knows better, to force a vote on eliminating the filibuster on the Senate floor.  Most Democratic senators who recognized the filibuster’s importance nonetheless voted to end the filibuster, confident that Senators Joe Manchin and Kyrsten Sinema’s votes would preserve it.  Progressives promptly doubled down on the vilification of those two senators, ending their political careers.  But were they right?

     This seems the perfect moment for a thoughtful reconsideration of the merits of ending the filibuster.  At this writing, we are in an unusual moment where it is entirely plausible that either political party could hold a “trifecta” – majorities in the House and Senate plus control of the White House – come January.  If so, the filibuster will be the only leverage the losing party has in the legislative process.  With both prospects in full view, people on both sides of the partisan divide would do well to consider whether the benefits of having free reign over the legislative process if they win outweight the harms of being shut out if they lose.  Although only one party (at most) will have a trifecta next January, with the electorate as evenly balanced as it is between the two parties, and with neither party much interested in broadening its ideological sweep, each party has a plausible chance of holding a trifecta in the reasonably near future.

     Nor do we have any reason to assume that Republicans will eliminate the filibuster if Democrats do not.  Republicans held a trifecta in 2017 and 2018, and yet the only major legislation they enacted was the 2017 upper-income tax cut (which moved through filibuster-skirting reconciliation procedures).  They could have done far, far more had they needed only a simple majority in the Senate.  Indeed, although their effort to repeal the Affordable Care Act failed to garner a simple majority, that likely was because the severe limits of the reconciliation process – which they had to follow to avoid a filibuster – prevented them from including sweeteners to buy the vote of at least one of the Republican dissidents.  If Republican senators could not reach consensus on eliminating the filibuster then, we have no reason to believe they will do so next time they have a trifecta. 

     Some have suggested that Democrats could find some sort of middle ground, eliminating the filibuster for some purposes while keeping it for others.  This ignores Senate Rule XXII.2, which require two-thirds of those voting (not a mere sixty votes) to change the filibuster rule.  Any changes to the filibuster rule that one party imposes without consent from the other can only be achieved in blatant disregard for Senate rules.  Once Democrats show their disdain for those rules, Republicans will feel politically compelled to respond in kind next time they are in power, completing the filibuster’s demise.  Therefore, if Democrats do change the filibuster on a partisan basis, they might as well impose whatever rule they want because Republicans will never accept their diktat.    

     So the question is whether being free of the filibuster when they are in the majority benefits Democrats more than being without it when they are in the minority harms Democratic priorities.  For me, the answer is clear for several reasons. 

      First, eliminating the filibuster is fundamentally deregulatory.  Repealing a regulatory or spending program is quick and easy when a party takes power.  By contrast, establishing such a program takes considerable time and effort.  Congress enacted the Affordable Care Act was enacted in early 2010, but its major provisions did not take effect until almost four years later.  The legislation creating other important anti-poverty programs generally provided for two or more years lead time.  Major environmental statutes required significant lead time as well to create and staff an administering agency, to write necessary rules, and to give regulated entities time to come into compliance.  This transition period likely will be extended by at least a couple of years as regulated entities seek an injunction in their favorite Texas federal court.  New programs also commonly have serious growing pains that last several years, often causing the program initially to look like a mistake.  If opponents gain a trifecta at any point during this transition period, all the work enacting this program will be washed away without a trace.

     By contrast, President Reagan’s human services cuts took effect within months.  Similarly, the 1996 welfare law – ending Aid to Families with Dependent Children and stripping millions of low-income people of other subsistence aid – was effective immediately; those few provisions with phase-ins generally were fully effective within one year. 

     If Republicans can repeal Democratic legislation as soon as they take power, Democrats will accomplish very little.  Democrats can complain, but the electorate will have no clear basis for deciding whether to believe Republican claims that the programs they were repealing were horrid and disastrous.  Until the Affordable Care Act had been in operation for several years, many voters believed Republican claims that it empowered death panels. 

     Second, because of asymmetries in the parties’ coalitions, legislation enacted during Republican trifectas will systematically be more extreme than legislation passed when Democrats are in power.  For example, Republicans have repeatedly enacted budget-busting upper-income tax cuts, making vague claims that growth will make up for the revenue losses that, of course, never come true.  Democrats, however, cannot enact budget-busting human services expansions or environmental protections because large elements of their coalition believe in fiscal caution.  Republicans have far more leeway to pass legislation harming disfavored minorities than Democrats have to target benefits to members of those groups or to target elites (who are among their important donors). 

     Third, and related, Republicans have far more effective alternative safeguards when they lose control over the legislative process.  Moderates remain significant in the Democratic Party and continue to insist on limits in Democratic initiatives.  Although a few Republicans describe themselves as moderates, their leverage is far more circumscribed and, in the end, they vote with their party on the great majority of matters.  Business interests remain influential on Democrats through donors; few core Democratic constituencies retain meaningful influence on today’s Republican Party.  Most importantly, the conservative super-majority on the Supreme Court has proven attentive to the interests of Republican constituencies even when the legislative process is not; after this past term in particular, it is difficult to imagine many structurally important Republican initiatives that would face serious judicial scrutiny. 

     Fourth, the bipartisanship that the filibuster compels actually serves legitimate purposes.  Among the first concessions each side makes when they sit down to negotiate are the dumb provisions influential Members in their caucus insisted on including in their bills.  Their own party leadership often knows these are bad ideas – unworkable, too extreme for most of the electorate, wasteful, etc. – but often lacks the political capital to remove them.  Bipartisanship allows considerable worthwhile pruning, even in these polarized times.  

     Finally, Republicans seem likely to control the Senate more than Democrats do, making it appropriate for Democrats to preserve their leverage in the minority.  Half the states are fairly solidly Republican, with North Carolina likely the most moderate of these.  To control the Senate, Democrats must hold every single blue- and purple-state seat (along with the vice presidency) or claim at least one red-state seat for every blue- or purple-state seat they surrender.  (At present, Democrats hold seats in Montana, Ohio and West Virginia while Republicans have senators from Maine and Wisconsin.  Democrats face difficult races in all three red states and quite a few purple ones; repeated efforts to dislodge Sens. Collins and Johnson have gone nowhere.)  Progressives’ insistence on eliminating Sen. Manchin, despite his support of a great number of Democratic initiatives, suggests that they will not be improving this map any time soon. 

     This, of course, raises the question of whether Republican senators are foolish for preserving the filibuster.  I think they are not.  From the perspective of personal self-interest, having influence through the filibuster makes service in the Senate minority still a worthwhile occupation; by contrast, Members in the House minority are largely excluded from the legislative process much of the time.  Also, whatever their public postures, many Senate (and House) Republicans do not want to enact some of the extreme measures that they feel they must support to fend of primary challengers.  The filibuster and bipartisan negotiations free them from having some of those bills on their consciences.  Moreover, although Democrats clearly favor new regulatory and fiscal programs more than Republicans, most Members come to Washington with genuine objectives they hope to accomplish.  Absent a filibuster, Democrats can exploit the same dynamic described above to destroy Republican initiatives before they get off the ground. 

     Precisely because of the uncertainties of the moment, progressives would do well to consider whether the current anti-filibuster orthodoxy really makes sense. 

     @DavidASuper1