The normie case for filibuster reform

S E E D E D   C O N T E N T

Majority rule isn't just — or even especially — for leftists

Requiring laws to get 60 votes to pass the US Senate is a dumb idea.

It's also much more ahistorical than most Senators seem to understand. No legislature works this way. It ought to be changed. And I want to establish my bona fides here. I published my first "let's abolish the filibuster" take over 15 years ago when Bill Frist was Majority Leader and George W. Bush was president. This is not a partisan opportunist thing; I have always maintained that this is a bad way to govern the country.

The current dynamic is that it's mostly left-wing groups pressuring Democrats to end the filibuster and mostly moderate members resisting. That's fine (and in fact a welcome change from the 2005-2010 era when progressive interest groups were huge filibuster-boosters) but I do think it frames the issue in a perhaps counterproductive way. When Mark Kelly sees the Sunrise Movement yelling at Joe Manchin about the filibuster, I think that probably makes him less likely to want to end it, rather than more. So it's worth calling attention to the many, many, many normie Democrats who've been making this case. Most prominently, that was Barack Obama last year. James Clyburn, the patron saint of the normie Democrats, is against the filibuster. The fact that Jeanne Shaheen is against the filibuster and so is Bob Casey is worth paying attention to.

So while I am really glad to see left-wing groups on this bandwagon, I also want to reassure more moderate Democrats. A bill like the Medicare for All Act that currently has 14 cosponsors doesn't suddenly pass because you lower the threshold from 50 votes to 60. I don't even think you should expect a ton of party-line legislation to pass 51-50 in a closely divided senate — obtaining absolute consensus is really hard. But if the Democratic caucus has absolute consensus then without the filibuster they can govern. And perhaps more importantly, in a majority rules Senate, a light dollop of bipartisanship can get a bill over the hump rather than everything being total obstruction or a leadership-driven bargain.

Ending the filibuster isn't about enacting an extreme agenda, it's about empowering the more moderate half of the Democratic caucus to set the agenda. They ought to step up and do it.

The filibuster is always changing

One of the biggest myths hanging over the whole filibuster debate is the idea that a 60-vote supermajority requirement for Senate action is some kind of longstanding tradition. Norms are important in any political system, and I think various elements of civic pageantry are unusually important in the United States. But it's simply not true that this is something handed down to us by the founders, or that altering filibuster practice would be a break with tradition.

The whole story is very complicated, but a key thing to know is that from 1806 to 1917, there was absolutely no way whatsoever to force an end to debate in the US Senate.

That did not mean that the Senate operated under a unanimity rule. Instead it meant that while senators would sometimes filibuster things, it was also normal for bills to pass even when the minority technically could have held them up. That changed when pacifists tried to block one of the Wilson administration's wartime initiatives, which inspired the Senate to adopt the rule that 67 senators could cut off debate.

Crucially the goal here was not to create a supermajority requirement for legislation. Instead what senators thought they were doing was creating a system that would only rarely be used because most bills would pass with majority support.

The Midcentury Filibuster, then, was mostly used by Southern Democrats to block civil rights and anti-lynching legislation. Congressional politics at this time was not highly partisan and bills that passed normally passed with big bipartisan majorities. But the documentary evidence is clear, for example, that Lyndon Johnson's whip team believed they needed just 50 votes in the Senate to pass Medicare.

• In the 1970s they lowered the cloture threshold to 60 votes. Mike Mansfield also introduced "dual tracking" so that it was no longer the case that filibustering one measure meant blocking all senate business; instead the leader would just move on to other issues.

• Making it easier to halt filibusters and less disastrous for the country to filibuster something, along with the increasing polarization of the parties, started to encourage more filibustering.

• Also in the 1970s they introduced the Budget Reconciliation process so certain kinds of deficit reduction bills could move through Congress on an expedited basis.

• Then in the 1980s, Budget Reconciliation increasingly became a legislative tactic of choice for Ronald Reagan — initially more because it solved an issue with the internal politics of the House. There was never a GOP trifecta during the 1981-1992 period so the filibuster per se was not a huge point of emphasis but it's clear the general understanding was things could pass the Senate by majority vote.

• In 1991, Clarence Thomas was appointed to replace Thurgood Marshall on the Supreme Court. Swapping out an iconic progressive for a rightwinger was bound to be controversial, and Anita Hill's charges only made it more so. He was eventually confirmed 52-48 with the minority evidently feeling it would be inappropriate to filibuster on something like this.

• I graduated college in 2003 then moved to DC in the fall to work as a political journalist. The first big story of that autumn was the passage of the Medicare Modernization Act by a 54-44 margin. There was genuine anger in some circles that Democrats didn't filibuster that, but for a mix of tactical reasons (they didn't want the issue to be salient in 2004) and norms (it was a conference committee report, and an earlier version had passed the Senate with more votes), they didn't.

• After Bush's reelection, two things happen. One is Democrats decide they are simply not playing ball with Social Security privatization. No specific bill to filibuster ever actually comes together, but the fact that anything the GOP does will clearly die by filibuster is an important piece of background context. Democrats also start filibustering a bunch of Bush's circuit court nominees, which is something that's always been permitted but rarely done in practice.

• Conservatives threaten to change the rules, and a group of moderates strike a deal where most of the filibustered judges get confirmed but a few are withdrawn and the filibuster remains.

• Justice Alito is eventually confirmed by a 58-42 vote, with several Democrats voting "yes" on cloture but "no" on final passage. Progressive activists criticize this decision and then-senator Barack Obama famously writes a Daily Kos guest post defending it.

• Democrats win the 2006 midterms; GOP Senate leader Bill Frist is replaced by Mitch McConnell, and it's only then after over 200 years of operation that it becomes standard practice for minority party members to never allow cloture unless they plan to vote for final passage of the underlying measure.

• This new 60-vote Senate lasts for exactly three congresses, before Republicans — in a fit of hubris — start saying there are certain offices for which they will block any person who Barack Obama nominates. Harry Reid changes the rules so you can now confirm a nominee with 50 votes — with an exception for the Supreme Court.

• That rule lasts for two congresses, until Democrats try to filibuster Neil Gorsuch's confirmation, at which point Mitch McConnell changes the rules so that you only need 50 votes to confirm a Supreme Court nominee.

• "50 votes for appointments, 60 votes for bills" is now on its third congress.

That was a longwinded story, but I think it needs to be longwinded to make the point.

The filibuster has always been evolving. The two most stable periods of Senate procedure — the 19th century no cloture era and the Midcentury Jim Crow Filibuster — both relied on norms that ensured filibustering was the exception rather than the rule. Since the 1970s, there's been a steady dance of minorities using the filibuster more widely and majorities restricting the circumstances in which it's allowed.

Mitch McConnell's one-man tradition

Obama-era filibuster reformers often asserted that Democrats might as well scrap it because the GOP obviously would once they had the chance.

During Donald Trump's administration, Mitch McConnell showed the limits of that. They changed the rules with zero hand-wringing or delay when it was needed to get Gorsuch on the Court. But then never seriously considered changing the legislative filibuster no matter how many times Trump tweets. I think this reflects a more sincere McConnell view than he gets credit for — current rules already allow majority vote on Congressional Review Act deregulatory measures and on tax cuts (via reconciliation), so throw in judges and he's fine.

But conversely, McConnell is often seen as a traditionalist or an institutionalist when the plain fact is that the tradition he's defending is one that he personally made up. If you look at history, there is both a long-term increase in filibustering but also — as Josh Chafetz points out — a specific jump when McConnell becomes minority leader.

The trend is unmistakable—and a more fine-grained picture tells an even starker story. Through the 109th Congress (2005-2007), there had never been more than eighty-two cloture motions filed (104th Congress), sixty-one cloture votes (107th Congress), or thirty-four invocations of cloture (107th and 109th Congresses). In the 110th Congress (2007- 2009), there were one hundred thirty-nine cloture motions filed, one hundred twelve votes on cloture, and cloture was invoked sixty-one times. In other words, that one Congress had 69.5% more cloture motions filed, 83.6% more cloture votes, and 79.4% more successful invocations of cloture than any Congress had ever had before . And the 111th Congress (2009-2011) followed suit, with one hundred thirty-six cloture motions filed, ninety-one votes on cloture, and sixty-three invocations of cloture.

Here we get to a weird thing. People often think of the Senate as a bastion of old guys hanging on past their prime. But there are actually only 22 senators who've been serving since before the 2006 midterms.

The two Democratic senators who've been most vocal about preserving the filibuster — Joe Manchin and Kyrsten Sinema — were elected in 2010 and 2018 respectively. There's nothing wrong with new members bringing a new perspective to the table, but that's what's going on here. They're not defending a longstanding Senate tradition; they're defending a new practice that was made-up by the current minority leader and that's already led to two rule changes because it was unworkable. Filibuster reform, by contrast, is being pushed not just by feisty young leftists but by genuine old bulls like Harry Reid who actually remembers the old Senate rather than McConnell's invented tradition.

One critical difference here is that the members who experienced the older, more bipartisan, Senate remember how it worked and that bipartisanship was not, in practice, driven by a routine need to clear 60-vote thresholds.

The filibuster entrenches leadership

Something that almost all senators say is that they're frustrated with the extent to which the body has become leadership-driven with little opportunity for individual senators to shape the course of legislation.

Traditionally, the Senate's clunky procedures have been seen as a safeguard of individual senators' prerogatives vis-a-vis leaders and national parties. But the 60 vote Senate was made up by McConnell and not coincidentally it serves to empower him rather than individual members.

The reason is that 60 votes is too many. Right now there's a bipartisan group of sixteen senators that's supposedly working on some kind of alternative to a reconciliation driven Covid relief bill. But 50 Democrats plus eight Republicans isn't enough to pass a bill. In practice to overcome filibusters you need so much bipartisanship that the only viable way to get there is direct leadership-driven talks.

I've noticed over the years that Todd Young from Indiana, who is very right-wing and not like a showy Trump critic or anything, tends to pop up as a cosponsors of interesting bipartisan bills like the YIMBY Act and the Endless Frontier Act. In a sensible Senate, a guy like Young who has progressive partners on some bills could bring along 2-3 moderate Republicans. And after that, you'd have a bill that vulnerable Democrats would like to talk about, so there's pressure on the leadership from the pivotal members to focus the agenda on a bipartisan proposal.

That's the kind of Senate that most members say they want — one where individual initiative is important and where the agenda is open to rank and file members. The filibuster, by making the bar to legislating so high, pushed everything to leadership and to giant omnibuses. It also in practice discourages rather than encourages compromise.

Obstruction isn't compromise

I think the biggest thing today's moderate Democrats get wrong about the filibuster is they keep wanting it to result in bipartisan compromises (which give them helpful political cover) and they fear that a majority rule senate would generate a lot of left-wing legislation that they're uncomfortable with.

But just look around: Is the Senate in fact passing lots of moderate bipartisan bills that make the public feel good about incumbents? Not really. And does Mitch McConnell — the architect of the universal filibuster — seem like someone who's passionate about problem-solving legislating, bipartisan compromise, and ideas that help red state Democrats hold their seats? Again, not really.

What Joe Manchin wants is for moderate Republicans to come to the table with ideas that he likes better than what progressive Dems are pushing for.

But for that to happen, moderate Republicans need to prefer the compromise outcome to the no-compromise outcome. Right now, the no-compromise outcome is that nothing passes. And we've seen time and again that moderate Republicans are okay with that. If the filibuster is gone, then the no-compromise outcome at least potentially becomes left-wing bills passing. But there are lots of Republicans (not just Lisa Murkowski and Susan Collins) who have reason to prefer moderate bills to left-wing ones. And since Manchin also prefers moderate bills — and has a strong political incentive to favor bipartisanship — there is now a real opportunity for moderate Democrats to make deals with Republicans.

Now some Republicans won't care. Ted Cruz and Rand Paul probably prefer to cast ineffectual no votes rather than win substantive concessions.

But in a universe where voting no is likely to be ineffective, there's a reasonably large universe of Republicans who at least some of the time will prefer substantive concessions to ineffectual no votes. And that's how you end up with bills that pass 73-22. It's not by requiring that legislation get 70 votes to pass. It's by creating a situation where some kind of legislation train is bound to leave the station, so it's actually worth your while as a senator to get on board.

Political power is lying in the streets

Lenin famously said of the chaotic situation prevailing before the October Revolution: "power was lying in the street; we picked it up."

Moderate Senators have spent the 21st century essentially refusing to pick up political power. They let more extreme members set the agenda and define the issue space. Then they either obstruct, or they cut the proposals down. But they don't collaborate effectively with each other, articulate their own ideas clearly, set the policy agenda, or otherwise wield influence commensurate with their actual institutional role.

Trepidation about the legislative filibuster continues that trend. Rather than make themselves pivotal, Manchin & Sinema currently prefer to punt authority to Jerry Moran (or whoever) while letting relatively extreme voices define the brand of the congressional Democratic party.

This is bad on their part, but also part of a larger trend toward politicians being blame-avoiders rather than power-seekers. Andrew Cuomo and Bill deBlasio spend a lot of time explaining why various things are the other one's fault rather than actually taking responsibility for things. Donald Trump did not use the pandemic as an opportunity to centralize authority; he instead punted issues down to state governments as much as possible. Then left to fend for themselves on vaccine distribution, governors blamed a lack of federal resources rather than spending the summer months reconfiguring budget priorities to get the resources they need.

But this I think is the real issue here. Leftist groups pressuring moderate Democrats to end the filibuster is this weird dynamic because even if the filibuster ends, the moderates don't suddenly become leftists. For leftists to run the senate, they need to win elections in the pivotal states. But that doesn't mean the filibuster should stay. It should go! The moderate Democrats should seize power for themselves, govern the country, and impress everyone with how amazing they are. Not just because it would lead to better legislative outcomes (though I think it would) but because beyond the specifics of this procedural debate, we shouldn't be perennially governed by people who don't want to govern.

I wrote last week about the troubling culture of complacency in America, and eagerness to cling to the filibuster strikes me as a central example. A politics based around fearing the other side's ideas more than you embrace your own ideas is a sad dead-end for a society that's giving up.