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It’s Long Past Time to Abolish the Filibuster

The Senate filibuster isn’t just an impediment to even mildly progressive legislation — it’s one of the most antidemocratic aspects of a deeply antidemocratic institution. It should be abolished immediately.

Still from Mr Smith Goes to Washington. (Columbia Pictures)

The popular image of a “filibuster” looks something like the marathon monologue delivered by Jimmy Stewart’s character in Mr Smith Goes to Washington. Bernie Sanders played to that image in 2012 when he delivered an eight-hour speech denouncing a deal that extended George W. Bush’s tax cuts for the wealthy. The stemwinder helped make Bernie a progressive hero and laid the basis for his two presidential runs.

But the reality of contemporary filibusters isn’t represented by either Mr Smith or Mr Sanders. In fact, Bernie’s speech wasn’t technically a filibuster at all.

Here’s how they actually work now: senators’ offices get “hotline” emails from leaders asking if anyone wants to filibuster a given nominee or bill. While US senators (and state-level equivalents like Wendy Davis) who engaged in “talking filibusters” sometimes had to go as far as equipping themselves with urinary catheters before all those hours of talking, today a junior staffer can simply call their party’s “cloak room” to let them know that the senator they work for intends to “place a hold” on whatever the “hotline” was about. That’s it. That’s the filibuster.

During the four years of George W. Bush’s presidency when the GOP controlled both the House and the Senate, liberals were outraged by Republican threats to exercise the “nuclear” option: abolishing the filibuster for judicial nominees. Today, the partisan valence of the filibuster debate has switched. Only two Democrats, Joe Manchin and Krysten Sinema, have joined Republicans in pledging to keep the filibuster if Democratic leadership decides to “go nuclear” this session. Bernie Sanders has also changed his tune.

After declining to support scrapping the filibuster during his runs for president — perhaps thinking of the splash he’d made with his own retro “filibuster” in 2012, or perhaps just reluctant to pick this particular fight with his fellow senators unless or until he assumed office — Bernie has now come out against the filibuster.

That’s progress. The filibuster may have lost its dramatic flair, but it’s never been more effective in blocking a wide range of progressive legislation. Getting through a mildly pro-worker agenda, much less the ambitious social-democratic one we need, will be extraordinarily difficult if this hideously antidemocratic tool remains in place. It’s time to abolish it.

The Cooling Saucer in Action

Contrary to the usual rhetoric about “checks and balances” and “the framers,” James Madison and his compatriots were quite explicit about opposing any supermajority threshold in the Senate. Early rules included a “previous question” procedure for stopping debate when a minority faction had gone from just making its case to trying to obstruct a vote.

Yet the democratic socialist case against the filibuster doesn’t rest on an appeal to the authority of the framers or the supposed sanctity of the Senate. It rests on the urgent need to democratize the United States’ political institutions.

The purpose of the Senate, Madison wrote in his notes on the Constitutional Convention was, “first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led… They themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.” These “enlightened citizens” were to serve as the “cooling saucer” for popular democratic passions. (The latter phrase is often attributed to George Washington, though he may not have said it.)

By the 1830s, the representatives of the Southern planter class were worried that the “enlightened citizens” picked by northern state legislators might not be sufficiently fenced off from the influence of the abolitionist movement. The great early innovator of the filibuster was John Calhoun, the fanatical defender of slavery who historian Richard Hofstadter called “the Marx of the master class.” In their hands, the procedure was deployed as a second “cooling saucer” against rising anti-slavery sentiment.

Fast forward to the mid-twentieth century, and it was segregationists who constantly used the parliamentary tool to block any measure that smelled of civil rights. Anti-lynching legislation and ending the poll tax — which the overwhelming majority of the American public supported by the end of the 1930s — were blocked by filibustering Southern senators.

Emphasizing these facts might look like I’m committing the “genetic fallacy” — opposing the filibuster on the logically irrelevant grounds that the tradition was largely innovated by terrible people. But there’s a relevant point lurking in all of this history.

As historian Matt Karp has pointed out, the antislavery movement that ultimately elected Abraham Lincoln was a popular mobilization that saw “the slave power” as a threat to all free people. In words of the great abolitionist politician, William Seward, the planter class was “one one-hundredth” of the US population, yet expected the rest of the country to bend to its will.

Similarly, the Civil Rights Movement, with its marches for “jobs and freedom,” targeted a system of segregation that was bound up with economic despotism. The segregationists who spent decades blocking any legislation that would give black people equal human and legal rights — right up to their unsuccessful filibuster of the Civil Rights Act of 1964 — correctly understood that “integrationism” went hand in hand with trade unionism and an attack on Southern oligarchs.

It’s not a coincidence that the defenders of deeply antidemocratic causes like slavery and segregation, having abandoned hope of convincing even a majority of the Senate, felt the need to take refuge in pure obstruction.

Why Democrats Should Scrap the Filibuster

Along with the principled, pro-democracy argument, there’s a practical reason for scrapping the filibuster. If the Left was ever able to elect the hundreds of House members and fifty-one senators we’d need to force a boldly redistributive economic agenda through the creaking machinery of US government, staffers working for reactionary senators would be very busy placing filibusters on left-wing legislation.

Perhaps this is one reason that Republican leadership never scrapped the filibuster when they would have benefited from its absence in the short term. They knew that this secondary “cooling saucer” would, in the long term, help protect the interests of the 1 percent. The neoliberal leadership of the Democratic Party might hesitate now for the same reason.

But Democrats are also facing real political costs if they keep the filibuster for the next two years. While the budget reconciliation process allows them to pass anything deemed to have a significant impact on the budget, as David Dayen argues, this isn’t quite the “get out of jail free” pass it might seem to be.

For example, can raising the minimum wage to $15 an hour be passed through reconciliation? It can if the Senate parliamentarian rules that it has significant budgetary consequences, and the “good news” is that there’s a case that it will — a wage hike could generate more income tax revenue and reduce government spending because many workers would lose lose their eligibility for means-tested benefits like food assistance. Yay! But wait: if you packaged the wage hike with an increase in the ceiling for eligibility (we are in a pandemic, after all), you could easily create a situation in which the budgetary effects cancel each other out, putting you back at square one.

Dayen also raises the issue of the Pay-As-You-Go Act of 2010, which triggers automatic cuts to “mandatory spending” like Medicare when the government spends money without offsetting it. The Senate can choose to waive that — but only with a sixty-vote supermajority. Any COVID-19 relief passed through reconciliation would trigger the cuts.

To avoid losing their narrow majorities in both houses, the Democrats will have to concretely and unambiguously make people’s lives better in the next two years. It’s very unlikely that this can happen within the limits set by Pay-As-You-Go, the filibuster, and the shortcomings of the reconciliation workaround.

One Way to Abolish the Filibuster

As long as Manchin and Sinema stick to their guns, the whole issue might seem to be moot. But there may be a way around that problem.

In a 2010 op-ed for the New York Times, lawyer and commentator Thomas Geoghegan suggested that the vice president, operating in their capacity as the president of the Senate, could issue an opinion from the chair finding that the filibuster is unconstitutional and ordinary bills only need to pass the simple majority threshold set in the text of the Constitution.

This wouldn’t be the end of things. Republicans would almost certainly get the courts involved. Manchin and Sinema could simply vote against any bill that would have failed to pass a supermajority threshold, depriving the legislation of a majority. But even these scenarios would create openings to maneuver.

A court battle would at least shine some light on the attempt to pass meaningful relief for workers and the fact that it was being blocked by Republican shenanigans. And Manchin and Sinema enforcing the effect of a filibuster on a case-by-case basis would be ideal for preparing the way for primary challenges against them in 2022.

The bulk of voters in Arizona and West Virginia may be to the right of the Democratic Party on some issues, and many may even like the idea of their senators being less “liberal” and more independent-minded than regular Democratic senators. But on many bread-and-butter issues, casting the decisive “no” vote could be viewed as deeply embarrassing.

To be sure, the last primary challenge against Manchin went badly. And when that challenger won the primary for West Virginia’s other senate seat two years later, the Republican crushed her in the general election. So it’s possible that even if Harris declared the filibuster unconstitutional and Biden camped out in West Virginia campaigning for a primary opponent, Manchin would still be willing to take his chances — or at least fall on the sword of defending his donors’ interests on the expectation that he’d pass through the revolving door and come out of it an extremely well-paid lobbyist.

So the reason for the Democrats to wage an all-out war against the filibuster, using every tool at their disposal, isn’t that there’s a guarantee that they’ll win. It’s that if they simply resign themselves to the filibuster as a fact of political life, they’re all but guaranteed to lose. And so will American democracy.