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Minority Rule in the Senate

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Minority Rule in the Senate

Why Democrats won’t ditch the filibuster October 2, 2020
Politics and law

Pressure is building on Senate Democrats to abolish the chamber’s filibuster, which liberals believe has long frustrated enactment of their preferred policies. But the filibuster is the foundation of senators’ personal influence and a key reason why they are far more powerful than individual members of the House of Representatives. The filibuster includes loopholes that enable moderate Democrats to enact their main policy goals, while protecting core Democratic interests from the prospect of sweeping legislation under Republican rule; it also serves as a useful scapegoat for the failure to enact impractical legislative wish lists. Senate Democrats are unlikely to abolish it any time soon.

The Democratic presidential primary was dominated by enthusiasm for Medicare for All and Green New Deal policy proposals. Yet, despite the possibility of Democratic gains in November, neither proposal has any chance of winning the 60 votes in the Senate needed to overcome a filibuster. Having repeatedly been frustrated in this way by Republicans during the Obama years, liberals are increasingly keen to abolish the filibuster—with the apparent encouragement of Joe Biden, who conspicuously avoided saying that he would keep the filibuster, and Barack Obama, who called for the filibuster’s elimination while speaking at Congressman John Lewis’s funeral.

Yet, where people stand on the filibuster usually depends on where they sit. Presidents have consistently disparaged an institution that makes it easier for the Senate to frustrate other branches of government. Trump has called for the filibuster’s abolition, George W. Bush sought its elimination for judicial nominations, and Bill Clinton’s administration contemplated a push to eliminate the filibuster before Democrats lost control of Congress in 1994.

Senators, by contrast, tend to support an arrangement that bolsters their power and influence relative to members of the House of Representatives. The filibuster makes the Senate the sticking point when major legislation is considered—it’s the place where the action is.

The filibuster also serves to undergird the power of individual senators. In the House, legislation is typically prepackaged by committees and brought to the floor for an up-or-down vote only when the majority party’s leadership is sure that it will pass. As a result, individual House members have little influence on legislation, unless they are in the majority party and have accumulated the seniority needed to acquire a position of influence on a major committee.

By contrast, the filibuster allows each senator the ability credibly to threaten obstruction of any piece of legislation, regardless of their seniority and which committees they may have a seat on. In practice, this enables senators to insist that changes to legislation be given serious consideration—either formally, as an amendment, or informally, before bills are brought to the floor. Senators can (and frequently do) leverage this power to great effect. Officials throughout the executive branch quickly respond to requests from senators, knowing that each can easily inconvenience them by inserting qualifications in appropriations bills.

The filibuster therefore enjoys strong support from senators of both parties, as it guarantees that they will never be entirely powerless—even when their party is in the minority. In 2017, 32 Democratic Senators joined 28 Republican colleagues in signing a letter to Senate leaders McConnell and Schumer, expressing support for the filibuster, and “opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.” Even non-signatories, such as Bernie Sanders and Ted Cruz, have expressed opposition to abolishing the filibuster, as it offers those outside party establishments the most valuable tool to impede bipartisan leadership agreements.

Democrats also have partisan reasons that weigh in favor of retaining the filibuster. Republicans have held a Senate majority for 16 of the last 26 years, but it’s been 111 years since Republicans last held the 60 or more seats now necessary to overcome a Senate filibuster. This has been critical to the defense of liberal policies during times of unified Republican government. Most recently, the filibuster prevented Republicans from altering the Affordable Care Act’s core reforms to insurance-market regulations. As a result, congressional Republicans could only use a filibuster loophole (known as the “budget reconciliation” process) to alter the amount of money spent within that system, which left them imprisoned by the ACA’s logic and unable to propose effective improvements and popular reforms.

More longstanding policies would also be threatened by the elimination of the filibuster. It’s been many decades since Republicans held unified control of government in blue states like New York. Public-sector unions and other Democratic-leaning groups have therefore been able to block state legislation that threatens their interests, while relying upon Senate Democrats to obstruct federal laws that may intrude. The abolition of the filibuster would disrupt these arrangements by allowing congressional Republicans to enact nationwide “right to work” laws, repeal Davis-Bacon requirements for unionized labor on public construction, expand tort reform to left-leaning states, and mandate that states expand school choice as a matter of civil rights. Indeed, filibuster abolition may allow Republicans to recast federal civil rights law around conservative principles, while adding a host of nuances and qualifications to prevent sweeping liberal rulings.

The filibuster already has enough loopholes to let Democrats achieve their near-term policy objectives. Biden’s health-care plan, which mostly involves expanding Obamacare spending and establishing a public option, could be enacted under the budget reconciliation process. The most important barrier to the enactment of such ambitious policy goals is not the filibuster but fiscal constraints. Indeed, congressional Democrats may value the filibuster in part precisely because it absolves them of the painful task of explaining to their electoral base that their policy preferences are simply unaffordable.

“I’m not busting my chops to become majority leader to do very little or nothing,” Senate Democratic leader Chuck Schumer said recently, as he contemplated ending the filibuster. “We are going to get a whole lot done, and as I’ve said, everything, everything is on the table.” Such bluff comes easily in campaign season, when the party base needs firing up, but whatever interest Schumer may have in centralizing Senate power within the chamber’s leadership is unlikely to be shared by the caucus rank and file.

Photo by Alex Wong/Getty Images

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