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The Filibuster Is a Direct Threat to American Democracy

It's not just about helping Democrats or making particular legislation possible. The filibuster actually endangers the whole edifice of civic democracy in America.
WASHINGTON, DC - MARCH 22: U.S. Supreme Court nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill Mar... WASHINGTON, DC - MARCH 22: U.S. Supreme Court nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 22, 2022 in Washington, DC. Judge Ketanji Brown Jackson, President Joe Biden's pick to replace retiring Justice Stephen Breyer on the U.S. Supreme Court, would become the first Black woman to serve on the Supreme Court if confirmed. (Photo by Kevin Dietsch/Getty Images) MORE LESS
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July 26, 2022 4:17 p.m.

TPM Reader PT notes — and rightly so — that it’s actually remarkable that there are only four Democratic senators expressing any real level of resistance to changing the filibuster rules. That’s a massive sea change from as little as four or five years ago. As I’ve noted, I fully expect Warner and King to give way in short order if their constituents press them. Its really just the two odd men (people) out: Manchin and Sinema. Today and going forward it is impossible for a Democratic candidate to be elected to the Senate anywhere in the United States while supporting the filibuster. It’s anathema among Democrats. But in this post I wanted to step back from the immediate necessity and partisan advantages of ditching or scaling back the filibuster to note how important it is for the future of civic democracy in the United States for the filibuster to be abolished.

Filibuster defenders now usually argue some future advantage. Senator King says that what seems like an obstacle today will be needed as a shield in the future. Filibuster opponents correctly respond that it is folly to believe that the current Republican Party would hesitate for a moment to ditch the filibuster if it represented any meaningful obstacle to getting anything they wanted. They took the wildly unprecedented step of refusing to entertain a Supreme Court nomination for an entire year to steal the seat left vacant by Antonin Scalia. They ditched the filibuster for Supreme Court appointments as soon as they had the chance to pack the Court under Trump. Everything we know about the current GOP tells us it’s folly to believe they’d hesitate.

Nor is it just the GOP’s willingness to ditch the filibuster. The contemporary GOP simply has much less it wants to do through legislation. They never tried to scrap the filibuster under Trump because they didn’t have anything they really cared about passing. Tax cuts and judicial appointments both go around the filibuster. Obamacare repeal failed but on a simple majority vote. The filibuster will disappear the moment it is to Republicans’ advantage to make it disappear. Keeping it around as a future shield for Democrats is pure folly.

But again, let’s step back from these questions of immediate advantage. Even if we were certain that Republicans would abide by the filibuster rules forever, it would still be critical to ditch it. Abolishing the filibuster is actually critical to the future health of our democracy in general.

Here’s why.

The filibuster is one of the key drivers of cynicism about electoral politics in the United States and demoralization about political participation generally. It is thus a key enabler of nascent authoritarian movements which thrive on civic and political dysfunction. Candidates and parties get elected promising to do X if they win an election. They get elected and X doesn’t happen. Indeed, not only does X not happen — X doesn’t even come up for a vote. Surely, it must be that the promises were a lie or a sham. The fix must be in.

If you’re really deep in the intricacies of legislative politics you know there are these obscure rules under which this all makes sense. But ordinary voters don’t know those intricacies. And it’s almost impossible to explain them. It’s just gridlock, a broken tether connecting electoral engagement with legislative outcomes. And really, they’re right not to understand it since it actually makes no sense. You campaign on the critical importance of health care coverage, abortion rights, climate change, the minimum wage and yet you’re not actually willing to change a parliamentary rule to make any of them possible? That really makes no sense. In fact, the ignorant occasional voters have a better handle on the matter than the knowledgeable politicos. This is all a product of living in SenateWorld — the bubble of the federal Senate — and being captive to SenateThought. We have before us a vicious cycle in which political minorities are able to stymie collective action, thus putting electoral politics itself into disrepute and enabling minoritarianism and authoritarian movements generally.

The other big defense for the filibuster is that without it you’d have key laws changing back and forth every two years, as one party and then another got on top and pushed through its legislative priorities. It would be chaos, they claim. But that’s precisely how it is supposed to work. Every two years we get the chance to say whether or not we like how things are being run. In practice, a big switch hardly every two years: the varied cycles of the House and Senate and presidency ensure that most elections don’t put everything up for grabs. The constitutional system as intended provides plenty of safeguards against rash movements in one direction of another. It is the filibuster that severs the tether between electoral action and political outcomes and thus short-circuits much of the logic of political participation.

Even the argument that the filibuster incentivizes compromise turns out to be bogus on its face. If it was clear that major questions would actually come down to a simple majority vote there would be far more incentive for senators to try to find majority coalitions that don’t fall on strict party lines. None of the arguments for the filibuster or against getting rid of it pass even the most basic test of logic or good government.

It is likely that abortion rights will be on the ballot in every election cycle for the foreseeable future. That’s bad. But it’s far better than having the matter settled against abortion rights for an entire generation. A large majority of Americans supports what was the Roe status quo. Having big questions — not just as general concepts but real potential outcomes — on the line in elections invigorates democratic participation. When a party has to take an unpopular position to the voters again and again they end up changing their position. That’s a good thing, both in this particular case and generally. The filibuster short-circuits all of this.

One of the points of lining up a clear set of commitments about abortion rights and the filibuster for the 2022 midterm is to reconnect those circuits. It’s revealing how novel it is to people that an election could have such a clear, important and concrete consequences — one that will materially affect their lives only months in the future. You get some sense of this in the response to the possible passage of federal legislation to ensure same sex marriage rights across the country, regardless of the actions of the Supreme Court. It seems oddly new to people, uncanny. Can we actually just pass big laws like this? We’re not bound by a packed Supreme Court for years or decades into the future until today’s middle-aged justices die off? The people’s representatives can legislate and settle matters now? That sense of novelty is a warning sign for a civic democracy. Because this is actually totally normal. What the overwhelming majority of the public supports should find its way into public laws.

This brings us to another aspect of the filibuster’s destructive impact. Making major legislation a rarity has massively increased the power of the Supreme Court and thus vastly magnified the consequences of the right’s corruption of the Court over the last two decades. The Supreme Court’s recent EPA decision was a clearly activist opinion, operating against the straightforward and broad remit of the law. But Court defenders are correct as far as it goes that the decision does not actually prevent Congress from taking dramatic climate action. It’s just that Congress has been out of the climate and environment legislation business for decades in significant part because any legislation must get sixty votes, an all but impossible standard in a polarized country. This is no defense of the Court’s action. But the legislative stasis created by the filibuster greatly extends the reach of the Court’s corruption.

Nor is it just the Court. The filibuster is also at the root of presidents’ growing reliance on executive actions and executive orders. It is a sign of the decay of federal politics that so much of the action now occurs through the White House counsel’s office resorting to executive actions to accomplish ends which are more properly left to the legislature and then signed off on or knocked down by a Supreme Court that works permanently for the Republican Party. Here again, the filibuster severs the tethers which enrich civic life and make political participation worthwhile.

The filibuster in its early 21st century incarnation, which is not just the particular rules but the way its use has evolved, is poison to civic democracy. The need to do away with it transcends either party’s momentary advantage. The sooner the better.

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