TPM Reader TB dropped me a note this afternoon about today’s second post. He liked it. Then he wrote this: “You’ve pretty much conclusively won the argument on SCOTUS reform, starting with immediate unilateral expansion. You’ve written comparatively much less about the filibuster and I’m among those unconvinced that just nuking it is the best way forward or that that’s a win as a platform plank. Not passionately against it, just not clear on how concretely that plays out as a long-term win.”
I’ve written pretty extensively about abolishing the filibuster. But I haven’t done so in quite some time. So I welcome the opportunity to do so again.
I’d put the matter in three related arguments: 1) It’s bad on the merits and defies if not violates the constitution. 2) It hurts Democrats disproportionately. 3) The existence of the modern filibuster is a major driver of the loss of confidence in public institutions.
Item one. The federal constitution is based on majority rule. Power is dispersed. It’s not supposed to be simple to make big changes. But majorities in the House and the Senate are what the constitution envisions. There are exceptions: treaties, conviction of impeached officials, overriding presidential vetoes, constitutional amendments, et al. The existence of these special cases tell us clearly that the framers believed there were some cases where more than simple majorities should be required. It specified what those were. They did not believe that should be required for ordinary legislation. For many of us what the constitution actually says and requires is enough. Obviously the Senate can create additional internal rules – which can in fact be overruled at any time with a simple majority vote. But it is an innovation and I would argue a bad one. There’s no history here or tradition worth vindicating. It’s a tool that was never intended to operate as it currently does. It was built up by Southern segregationists who wanted a veto of federal laws enforcing the civil war amendments. It’s a bad rule and we should get rid of bad rules.
Item two. It does not hurt both sides equally. Republicans generally want two big things. Tax cuts and judicial appointments. The filibuster doesn’t affect either. Democrats, as the party of government, wants policies – health care laws, rights laws like the ADA or the VRA, a million other things. Democrats want legislation. So the filibuster actually limits Democrats far more than it does Republicans. Republican senators generally know this. They are extremely protective of the filibuster because it works for them. It’s true that absent the filibuster Republicans would be able to pass laws Democrats would not like. But in most cases the hot button examples are actually things that are very unpopular. That is another advantage the filibuster gives Republicans. It allows them to gain from espousing policies favored by the far right without actually having to pass any of them. But this is also how democracy is supposed to work. If you win majorities and pass laws what you support should actually go into effect.
Item Three: One of the great challenges we face is not simply Trump but the disenchantment with civic democracy and government which made Trump possible. A central reason for that loss of faith is the way the modern filibuster severed the tether connecting voting and electoral outcomes from policy results. I do not think people appreciate the depth of damage that does to people’s experience of or confidence in self-government. And why shouldn’t it. That is the essence of the ecosystem of civic democracy. You vote for people who say they’ll do X. They win. Then X doesn’t happen. Then people who understand the inner-workings of government explain, well, sure you voted for it but the Supreme Court said no. Or yes, you voted for it but there’s this thing called the filibuster where 60 votes are necessary to do anything. Those are important explanations. But really, they don’t cut it. Elections are supposed to matter. The filibuster makes them more or less not matter. That isn’t just bad if you lose an election. It introduces a toxin into the body politic. It creates gridlock. It makes electoral participation seem like a chump’s game. We cannot argue that the filibuster is solely responsible for all loss of faith in democratic self-government. That’s not credible. And we have the example of European democracies where there are parallels losses of public confidence in democracy without the filibuster. But it is a big, big driver of it.
In today’s moment there’s an additional factor. If you want to reenforce and reform the federal government to make it more resistant to authoritarian assaults you very literally have to get rid of the filibuster. Otherwise, you’re limiting yourself to only the anti-authoritarian measures the authoritarians will buy into. I can’t accept that. And I can’t accept the idea that we simply do nothing. Getting rid of the filibuster follows necessarily from those two conclusions. On top of that, it shouldn’t exist in the first place. It’s bad constitutionally. It’s bad for Democrats. It’s bad for confidence in civic democracy. (That’s quite bad!) It’s not even like gerrymandering where there is no choice but to fight fire with fire in order to eventually get back to a system in which districts are drawn by a reasonable set of non-partisan guidelines which do not privilege or limit the representation of particular groups. It’s bad on the merits and there’s no path forward for the country with it in place. That’s why the filibuster has to go.
