By Fred Hill
The US Senate’s filibuster is fundamentally undemocratic and the Democrats should abolish it. By this, I mean the mechanism which allows the minority party in the US Senate to veto almost all bills with just 41 senators out of 100. Before Obama was elected as US President in 2008, the filibuster was a relatively uncontroversial part of the US Senate. Senators would occasionally talk of ‘filibuster reform’, but nothing would ever change.
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Since 2008, the decline of bipartisanship and the increase in all-out warfare between Republicans and Democrats has made the filibuster more and more controversial, with Democrats already abolishing it for judicial nominations in 2013 and Republicans extending this to the Supreme Court in 2017. As of today, the minority party in the Senate can still block most legislation if they don’t approve of it – and recently, with a razor thin majority of not even one (the senate is split 50/50 with Vice President Kamala Harris breaking ties), some Democrats have become fed up of their agenda being stifled.
The simplest argument for the filibuster being abolished is that the Democrats could pass more of their agenda. At the moment, Democrats are severely limited in what they can accomplish during Biden’s term – and they don’t have long to get things done before 2022, when it is highly likely Republicans will either take back the House of Representatives or Senate (most likely both). This is made especially urgent because since 2008, with a few notable exceptions, Republicans have barely lifted a finger to partner with Democrats for bipartisan legislation – and when they do, there are often strings attached.
The situation can be summed up by Senate Republican Leader Mitch McConnell’s attitude in 2010: that his top priority was making then-President Obama a one-term president, while Republican Senator John Barasso one-upped him this year by saying that he wants to make President Biden a half-term president.
Democrats have legislation that is ready to go. For example, Joe Manchin of West Virginia (arguably the most conservative Democratic senator) and the 49 other Democratic senators all support some form of voting rights legislation to reverse Republican measures across the country that have made it harder to vote – but even after all 50 senators had reached agreement, the Republicans filibustered it and stopped the bill in its tracks.
While Democrats can pass some of their agenda through a process known as reconciliation, this is severely limited – bills must be limited to just tax and spending, and can’t increase the debt levels over a 10 year period. They can also only pass 1-3 bills using reconciliation a year, depending on how wide-ranging the content of the bills are. Democrats should abolish the filibuster to actually get things done – from voting rights to criminal justice reform, to expanding Obamacare; due to Republican opposition to all of these policies, the filibuster’s existence means that currently none of these will happen.
Democrats failing to pass their agenda (even when they all agree!) because of disagreements over abolishing the filibuster (see: Senators Manchin and Sinema) only makes it more likely that the Republicans will take over Congress in 2022 and end Democrats’ prospects of enacting their agenda for good. Parties who get things done are rewarded for it – and voters have shown they don’t care about the obscure procedures in the senate that lead to them getting done. Failing to strengthen voter rights, making it easier for their own constituents to vote, will only make this problem worse.
Some Democrats fear that the Republicans will retaliate, and that abolishing the filibuster will lead to more of the Republican agenda being passed when they regain the presidency. They say that it isn’t worth it because the Republicans will abuse the ability to pass any legislation on party-line votes.
This argument is flawed because the modern Republican agenda can be achieved primarily through reconciliation: during Trump’s presidency, they managed to pass tax cuts without any Democratic votes and Trump had an outsized influence on appointing judges to federal appeals courts, as well as nominating and confirming three supreme court justices. The Republicans also repealed a part of Obamacare using reconciliation, and could have gone further and repealed it in its entirety if John McCain (the late Republican Senator) hadn’t sunk the bill with his famous no vote.
There is another reason not to worry about Republican retaliation. Even if Democrats decided not to ‘nuke’ the filibuster in order to stop Republicans from being able to take advantage of the situation in the future, it is close to guaranteed that if it suited them, Republicans would eliminate the filibuster. Since Obama, Republicans have shown that they will prioritise their agenda over almost anything, including democratic norms. Senators like Josh Hawley and Ted Cruz even formally objected to the 2020 results over baseless electoral fraud claims.
The way in which they held up Obama’s Supreme Court nominee (Merrick Garland), allegedly because the nomination was too close to the 2016 election, followed by confirming Trump’s (Amy Coney-Barrett) in the run-up to the 2020 election shows that the only reason they didn’t abolish the filibuster in the Trump-era is because it wasn’t helpful to them – not out of some kind of respect for the Senate’s rules and traditions. This was made even more clear when they blew up the filibuster for Supreme Court justice confirmations the minute a spot was freed up during Trump’s term. There is no doubt that in the future, if it would benefit them, the filibuster would be gone before the Democrats could even blink.
Finally, the filibuster is undemocratic to the core. Conceived to make sure both parties contributed to law-making, the filibuster is now used almost exclusively to hold up the agenda of the governing party. The nature of how the Senate is elected means that the Republicans are structurally advantaged because of their strength in overrepresented small, rural states. In fact, it would only take 41 senators representing about 65 million of the 320 million+ population of the US to block a piece of Democratic legislation by using the filibuster.
To make matters even worse, in 2021 these 41 senators don’t even need to put any effort into vetoing legislation – they don’t need to fill up time on the floor arguing against the bill, and they don’t even have to have a late night at work. In this way, the filibuster serves to increase the power of white, rural and conservative voters and make mandates given to Democratic politicians impossible to enact.
To senators who still support the filibuster, is incentivising bipartisanship worth the damage the filibuster does to democracy by watering down the power of certain subsets of voters? The fact that the filibuster is a traditional part of how the Senate operates does not give any more credibility to its advocates. Just because something worked in the past, it doesn’t mean it is fit for purpose now.
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