I agree with this guy. Kill the filibuster. Kill it dead. Kill it with fire. Damn the torpedoes...
Joe Biden May Have Only Two Years to Get Things Done
Bumping Senator Mitch McConnell to the minority increases Joe Biden’s odds of passing his agenda, but there is a catch.
In the Senate in recent decades, the filibuster has morphed from the long-winded speeches portrayed by Jimmy Stewart in “Mr. Smith Goes to Washington” into a silent but lethal tool that lets any one senator raise the threshold for passing bills from a simple majority (where the framers set it) to a supermajority of 60 votes.
The harsh reality is that when the dust settles on the chaos and violence that marked the end of the Trump presidency, Republican senators will have the same powerful incentives to deny Mr. Biden the 10 or so votes he will need, in addition to all 50 Democrats, to pass most bills in the Senate.
With Republicans needing just a handful of seats to take back majorities in the House and Senate, they will seek to make Democrats look feckless and ride voter discontent to gains in the 2022 midterms. In all but three times since 1914, the party that won the White House — in this case, the Democrats — loses House seats in the midterms. The next two years may be Mr. Biden’s best and perhaps only window to pass his agenda.
He can choose to avoid this fate, all while restoring the institution he spent 36 years in and empowering moderates. He and his fellow Senate Democrats can choose to reform the filibuster.
Mr. McConnell will run the same playbook on Mr. Biden that he ran on President Barack Obama: Just as Mr. McConnell realized that Mr. Obama’s political brand hinged on his promise to fix “the broken politics in Washington,” he knows that Mr. Biden’s relies on his ability to deliver bipartisan cooperation.
Mr. McConnell will come up with excuses not to work with the president that will sound lofty and politically valid. By the 2022 midterms, Mr. Biden’s pledges of bipartisan cooperation will lie in shambles.
Some commentators have argued for the use of end-runs around the filibuster like reconciliation. But they are harder than they look, and forcing bills to comply with reconciliation’s restrictive rules will probably lead to key provisions getting struck or force Democrats to try to change Senate rules anyway. More important, reconciliation cannot be used to advance critical policies necessary to repairing our democracy, like automatic voter registration and statehood for the District of Columbia. Nor can it be employed to pass many climate change policies.
The Senate’s paralysis has become accepted as normal. But the chamber was not meant to be a perpetual obstacle to new legislation — it’s important to look at history to see why it should be restored to its proper role.
The supermajority threshold of today flies in the face of the framers’ intent. They wanted the Senate to be a place where debate was thorough and thoughtful, but limited, and where bills passed or failed on majority votes when it became clear to reasonable minds that debate was exhausted. Originally, Senate rules included a provision allowing a majority to end debate, and an early manual written by Thomas Jefferson established procedures for silencing senators who debated “superfluous, or tediously.” Obstruction was considered beneath them.
For all of James Madison’s embrace of minority rights, he saw the complex system of government itself — not a Senate supermajority threshold — as the minority’s protection. Even without the filibuster, the United States government ranks high on the number of “veto players,” or checks on untrammeled majority rule, among modern democracies. Within this system of checks and balances, Madison believed, decision points on governing should be majority-rule.
The filibuster did not emerge until after the framers died. Its leading innovator was the South Carolinian John C. Calhoun. Seeking to protect slave owners against abolitionism, Calhoun envisioned a Senate where this powerful pro-slavery minority would have not just the voice Madison intended but a veto — or as he put it, “a negative on the others.”
To advance his vision, Calhoun forged the “talking filibuster” of popular imagination, marrying lofty defenses of minority rights with long-winded speeches. Radical as it was, the talking filibuster could only delay bills, since its practitioners eventually had to yield. Votes remained majority-rule into the 20th century. Many historic compromises on far-reaching legislation passed on majority-rule votes: the Missouri Compromise passed by just four votes; the Constitution itself hinged on majority-rule votes; the Great Compromise that created the Senate and saved the Constitutional Convention passed by a single vote.
The supermajority threshold now associated with the filibuster emerged in the Jim Crow era, when Southern senators used it to stop civil rights (and only civil rights) legislation. In 1917, the Senate created Rule 22 to “terminate successful filibustering,” giving a supermajority (today 60 senators) the ability to bring closure (or “cloture”) to a filibuster. Majority-rule votes remained the norm for all other legislation, but filibustering Southerners made this step of cloture — and its supermajority threshold — the standard for the dozen or so civil rights bills that passed the House and came before the Senate. So although Rule 22 was enacted to bring some constraint to filibusters, it ended up being wielded by Southerners as an effective veto of civil rights legislation.
Southerners inflated the minority’s right to unlimited debate with soaring oratory backed by intimidation from their monopoly of the Senate’s all-powerful committees, which controlled the prospects for legislation as well as senators’ careers. (At the time, most Southern members of Congress were Democrats, and they were sometimes in the majority of the chamber but in the minority on civil rights legislation, which had broad support.) Unlimited debate was a sacred principle only on civil rights; on the vanishingly rare occasion other issues faced filibusters, Southerners voted to end them. From the end of Reconstruction until 1964, the filibuster killed only civil rights bills.
After cloture was finally used to break a Southern filibuster in 1964, something unexpected happened: The filibuster and its supermajority threshold became normalized and streamlined to make the Senate’s expanding workload more manageable. Soon, any senator could invoke the supermajority threshold simply by registering an objection, which today can be done via email. In the hands of Senator McConnell, this user-friendly filibuster became a weapon of mass obstruction. Today, nearly every bill in the Senate faces it, and therefore must clear 60 votes.
The Senate never made a conscious choice to operate this way, and its leading lights denounced the decline of the upper chamber, many of them moderates. Horrified by Calhoun’s innovation, Henry Clay of Kentucky, the Great Compromiser, was the first to try to limit the filibuster. In 1957, the Eisenhower administration backed filibuster reform in an effort to pass civil rights, but was outmaneuvered by Southerners. In the mid-2000s, the constitutional case for restoring majority rule was laid out compellingly by Martin Gold, who had been chief counsel to the Republican Senate leader Howard Baker, and Dimple Gupta, who worked in the Justice Department under George W. Bush.
As these moderates of both parties saw, reform is necessary because Senate obstruction has evolved exactly as the framers feared when they warned against enabling a “pertinacious minority” to “control the opinion of a majority.” Calhoun’s vision of a minority veto has come to pass.
The key to reform is eliminating the minority’s ability to impose a supermajority threshold on legislation while still giving the minority a platform and making it easier for senators to bring bills and amendments up for votes.
For example, the Senate could require a Jimmy Stewart-style talking filibuster, not just an emailed objection, reviving debate and making the chamber a place where incentives align to produce thoughtful solutions. In such a Senate, the floor will be lively and moderates like Senator Joe Manchin, Democrat of West Virginia, and Lisa Murkowski, Republican of Alaska, would be kingmakers.
The most frequent objection is that such reform would make the Senate like the House. To the contrary, restoring floor debate and a basic ability to get things done would make the Senate the Senate again. The chamber’s fundamental purpose is to produce thoughtful solutions to the challenges we face, and its rules should exist not to entrench paralysis but to serve that goal.
In his memoir “A Promised Land,” Mr. Obama chronicles his regret that he “hadn’t had the foresight” to rally Senate Democrats to “to revise the chamber rules and get rid of the filibuster once and for all.” Because of his long Senate service, Mr. Biden has unique credibility to lead a successful push for reform. We can’t afford for the Senate to remain the place where good ideas go to die. We need to make the Senate great again.
