Sunday, June 13, 2021

The Problem with Half-Measures on the Filibuster

David Super

      What to do about the Senate filibuster is a much more difficult problem than progressives commonly assume.  As frustrated as I am with the ways it obstructs numerous parts of the progressive agenda, I doubt most proponents of abolishing the filibuster realize how much it benefits progressive causes.  Without the filibuster, the next time Republicans have unified control of the federal government, we could see the complete defunding of crucial agencies and the repeal or gutting of crucial civil rights, environmental, consumer protection, and financial regulatory statutes. 

     In the past, those agencies and statutes were protected by a combination of the filibuster, moderate Republican Members of Congress, and well-informed moderate swing voters who would punish extremism.  Smuggling mischief past those swing voters was difficult because the true significance of convoluted proposals could be effectively adjudicated by a handful of widely respected social arbiters in the Edward R. Murrow and Walter Cronkite mold. 

     Today, principled moderate Republicans have been primaried or forced into retirement, and the few swing voters are neither well-informed nor necessarily even moderate.  And outing nefarious legislative proposals’ true effects is extremely difficult with the lack of widely trusted authorities to provide definitive explanations.  Jimmy Kimmel may have saved the Affordable Care Act, but we cannot count on him to play that role repeatedly. 

     Thus, it is the filibuster alone that protects the Endangered Species Act, the Corporation for Public Broadcasting, and the Legal Services Corporation.  The filibuster surely is all that prevented Republicans from “updating” or “modernizing” civil rights, financial regulation, and environmental statutes into oblivion in ways that marginal voters would never understand or believe. 

     And it is reckless to assume that unified Republican control will not come again, perhaps quite soon.  Over 74 million voters were willing to re-elect Donald Trump after all he did in his four years in office.  The popular vote for the House is persistently close (especially when one discards effectively uncontested seats), and Republicans’ persistent strength at the state level is going to allow them to skew the electoral map heavily through redistricting.  To be sure, Democrats could re-enact any laws Republicans repeal and re-establish dismantled agencies, but the past four years have demonstrated that tearing down is much faster and easier than building back. 

     Eliminating the filibuster for legislation would have fundamentally different implications from the elimination of filibusters for confirmations of executive and judicial appointees during the Obama and Trump Administrations.  Senate Majority Leader McConnell made very clear during the George W. Bush Administration that he would eliminate the filibuster if Democrats blocked confirmation of any significant number of Republican judicial appointees.  Once he did that, the filibuster became useless to progressives and was rightfully eliminated by Senate Majority Leader Reid. 

     By contrast, Senator McConnell has repeatedly made clear that he values the filibuster for legislation.  He proved that by allowing important Republican priorities to fail rather than eliminate the filibuster.  Given his proven restraint on the legislative filibuster, Democrats can reasonably expect that if they resist the temptation to eliminate the legislative filibuster, it will be there for them when next they need it. 

     The most compelling argument for eliminating the filibuster is to enact voting rights legislation counteracting state voter suppression laws.  These laws increase the likelihood that Republicans can secure long-term dominance of the federal government without persuading a majority of the electorate.  Giving up the filibuster to pass voting rights legislation might make sense if that legislation clearly could make a big difference in securing more representative elections going forward.  The likely real-world effectiveness of the various Democratic proposals is beyond my expertise.  I will say, however, that it is important to differentiate between legislative proposals that are the best we have – noble gestures, but one that does not justify surrendering the enormous benefits the filibuster provides for progressive causes – from legislation that is genuinely likely to make a large difference even as it is applied by a very conservative judiciary. 

     Whatever the relative merits of keeping or killing the filibuster, one path that is almost certainly ill-advised is for the Democrats unilaterally to weaken, but not eliminate, the legislative filibuster.  This would truly bring the worst of all worlds. 

     An example of this sort of proposal is the idea that the Democrats would unilaterally reduce the threshold for invoking closure from sixty to fifty-five votes.  Current Senate rules require sixty-seven votes to change the filibuster.  Senator McConnell’s initial threat to abolish the filibuster for judicial nominees (which coerced Democrats’ votes for a raft of extremely conservative George W. Bush nominees), Senator Reid’s actual abolition of the filibuster for lower-court and executive branch nominees, and Senator McConnell’s subsequent abolition of the filibuster for Supreme Court nominees, all were essentially extra-legal moves.  Absent agreement from seventeen Republicans, any changes in filibuster rules would also be extra-legal.  If the Democrats extra-legally modify the filibuster, they can be quite certain that Senator McConnell would further weaken it to his purposes, or abolish it outright, next time he is majority leader. 

     The only way to preserve the filibuster in the next Republican Senate is to preserve it without any uni-partisan changes now.  Conversely, if Democrats are going to disregard Senate rules to change the filibuster now, they have little to gain by preserving part of it – and potentially seeing some of their agenda stalled as a result – because their partial restraint surely will not be reciprocated. 

     Some modest changes to the filibuster might be possible on a bipartisan basis.  A few narrowly defined classes of legislation have been exempted from the filibuster over the years:  concurrent budget resolutions, budget reconciliation laws, approvals of reports from non-partisan base-closing commissions, and certain actions under the Impoundment Control Act and the Congressional Review Act.  One can imagine Republicans agreeing to creating additional exceptions along these lines – but those, of course, would not be designed to advantage Democratic proposals specifically. 

     This August, I will be submitting to the law journals an article showing how a careful application, or plausible bipartisan modification, of existing rules can improve the functioning and democratic responsiveness of all branches of the federal government.  Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest.   More immediately, in the next few days I will have a post on progressives’ misunderstanding, and inappropriate vilification, of Senator Joe Manchin, who is at the center of many of these questions. 


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