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A Future Without the Filibuster

Feb 21, 2022 | Politics


Thus far, a whirlwind of ambitious, progressive legislative proposals, from the For the People Act to Build Back Better, characterizes the 117th Congress. But the prospects of these bills are dim. The self-proclaimed grim reaper of Congress, Senate Minority Leader Mitch McConnell, condemns every legislative measure from Democrats to the Senate graveyard. “One hundred percent of my focus is standing up to this administration,” Sen. McConnell said to reporters. “What we have in the United States Senate is total unity from Susan Collins to Ted Cruz in opposition to what the new Biden administration is trying to do to this country.”  

This grim reaper’s metaphorical scythe is the filibuster, a Senate parliamentary maneuver designed to delay the passage of a bill indefinitely. Over the past two decades, Senate Republicans have used this procedure to doom campaign funding restrictions, tax cuts for only the middle class, and a pathway to citizenship for young undocumented immigrants. Democrats have used the filibuster to block welfare cuts, abortion restrictions, estate tax repeals, and funding for oil drilling. In the minority party’s eyes, the filibuster is the last weapon they possess to block attempts by the majority to veer the country down a depraved path. 

Supporters of the filibuster applaud the procedure as the custodian of the Senate’s deliberative spirit. In theory, filibusters should compel compromise between opposing sides, inducing senators to sacrifice some of their preferred legislative items in exchange for the other side’s support. However, opponents argue that the modern filibuster is a tool of obstruction. Senators enacting or threatening a filibuster are not demanding negotiation in exchange for the bill’s passage; they are altogether ceasing any hope for the bill’s passage. 

But missing from the numerous op-eds assenting or assailing the filibuster is a lucid portrait of how a filibuster-free Senate would actually behave. In assessing the probable consequences of revoking Rule XXII (the filibuster rule) in this congressional term, it is more likely that a future without the filibuster would be less revolutionary than Democrats envision and less dystopian than Republicans dread. 

Consequence 1: Congress Can Govern Again (Sort of)

Free from any obligation to appease Republicans, Democrats would try to use their absolute congressional power to pass all the legislation they can to please their party constituents. D.C. and Puerto Rican statehood, guaranteed voting rights, and environmental protections would be at the top of the agenda. 

Despite the unprecedented party conformity among Democrats and Republicans, major legislation would still be a chore to pass. Both parties contain moderates who would demand concessions in exchange for their votes. According to an analysis by political scientists Frances Lee and James M. Curry, filibusters caused only one-third of legislative failures in times of unified government. In fact, insurmountable disagreements within the majority party caused 90% of legislative failures in the previous two periods of unified government. 

Under the current majority, many Democrats oppose the top Democratic priorities listed above. The two bugbears of the Democratic Party, Senators Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), present themselves as genuine obstacles to any remotely progressive agenda. Manchin has proclaimed that “Build Back Better is dead,” and Sinema’s constant obstruction of Democratic bills has led donors to pull their support. Moreover, four Democrats and Independent Senator Angus King (who caucuses with the Democrats) are reticent about D.C. Statehood

Republicans also suffered severe schisms among party members: when the Republicans held a unified government between 2017-2018, every legislative failure was due to opposition from within the party. 

Consequence 2: The Eradication of any Status Quo

If Republicans take over Congress in 2023, they would dedicate their energies to reversing the progress Democrats made and instituting new policies. As a result, it could be expected that Congress would spend much of its time “cleaning up” after the Democrats, leaving less time for Congress to respond to America’s needs. 

This pendulum-style of government could annihilate any semblance of the status quo, and Americans are not used to radical change. In the U.S., political change operates more like an experiment. It begins with a few state and local governments testing new policies. Areas that get the new laws are in the treatment group, and areas without the new laws are in the control. If new policies are effective and Americans in treatment groups adjust comfortably, the party championing the new laws gets evidence and support for those policies. The status quo is changed over years, not months. 

With radical changes beginning at the federal level, the new status quo could be constantly upended, and every election could become a high-stakes battle. This might enervate an electorate already exhausted from unceasing political campaigns. 

But due to intra-party disagreements, it is more likely that there would be little dramatic change, and the popular changes made by previous Congresses would be very difficult to reverse. In 2012, Democrats fought to keep the Bush-era tax cuts for families with incomes under $250,000. In 2017, Republicans failed to repeal and replace the Affordable Care Act due to opposition from members of their own party. 

Consequence 3: Polarization Intensifies

But in the meantime, congressional Republicans would likely supplement their lost leverage in the legislature with vociferous attacks in media appearances. The success of Republicans in provoking outrage could be decisive in Americans’ responses toward this new style of governance. 

Assuming both parties could pass some major, partisan legislation during unified government, the outcries from the opposing party could be catastrophic. If Democrats succeeded in gun rights restrictions, gun rights activists might stage armed protests. If Republicans succeeded in nationally curtailing abortion rights, this could elicit massive demonstrations and riots, possible emigration and a surge in illegal abortions.

Consequence 4: The Presidential Veto Is Used More Frequently

Chokepoints pepper the federal government. If legislation passes one chamber, it must pass the other. Then it must be signed or vetoed by the president. Even once a bill becomes part of U.S. law, the Supreme Court can strike it down.

In the eyes of a unified, filibuster-free Congress, a U.S. president from the opposite party poses a dangerous threat. Now, the presidential veto could replace the filibuster as the tool of obstruction. The president would veto all controversial legislation, requiring a two-thirds majority to pass the vetoed bills. Without the filibuster, the tension shifts from between the two chambers of Congress to the legislative and executive branches. This direction of polarization could increase the stakes of presidential elections even more.

A Future with the Filibuster

Of course, a future of filibusters would be more of the same. Activists would continue to campaign for gun rights or gun control, abortion rights or abortion restrictions, and none of it would matter very much. No matter how fervently these activists protest, no matter how loudly they shout, the status quo will be king. How can Democrats champion a $15 minimum wage when Republicans won’t hear of it? How can Republicans convince Democrats to decrease immigration? The parties have become so ideologically distant that compromise would require both parties to betray their principles on every major bill. With such polarization, the filibuster is a means to circumvent the painful process of sincere collaboration.

The truth of today’s filibustering Senate is that there is little compromise and no debate. Being swayed following honest deliberation could only hurt senators’ chances at reelection, as changing one’s mind would be perceived as betrayal.

While it is unlikely that Democrats will coax Senators Manchin and Sinema to agree to revoke the filibuster, pundits and politicians are considering ideas to reform it. One solution comes from political scientist Norm Ornstein, who advocates that the filibuster rule be amended so that instead of requiring 60 votes to cease debate on a bill, 40 votes should be required to continue debate. If 40 votes cannot initiate a filibuster, a simple majority can pass a bill. This proposal places the burden on the minority instead of the majority.

It is undeniable that the filibuster contributes to Congress’ inertia. Without the current filibuster rules and with more legislation passed, voters could finally judge their senators based on tangible policies and voting records. For those who favor responsiveness from Congress over the cautious path of milquetoast and infrequent compromises, revoking or reforming the filibuster is still a step forward.

Featured Image by Harold Mendoza on Unsplash.