If You Still Believe in the Filibuster, You Don’t Believe in Progress

I could go into great detail defining the filibuster, and I will, but all you really need to know is that Senate Republicans use it to stymie basically anything the Democrats want to do, they ignore it when the situation is reversed, and it’s the latest, greatest obstructive technique employed by a body that has been obstructing for centuries. If you see the U.S. Senate as a worthless body where conservatives who represent about 43.5% of the population strangle to death any policy that might help anyone but the ultra-wealthy, you are correct, and you should know that the filibuster is their chief weapon now that they’re in the minority. Sometimes you can bypass the filibuster with reconciliation, as we saw with the COVID relief package, but even in those cases a single parliamentarian can tank something like the $15 minimum wage with an arbitrary ruling. When it comes to screwing the American worker, the Senate usually finds a way.

(A necessary “credit where it’s due” caveat: Even without the minimum wage hike, the COVID relief package is a shockingly progressive piece of legislation and everyone involved in its creation and passage deserves praise, from Biden to Bernie. As we’ll see, this was passed using the process of reconciliation, and further important policy measures will be impossible to enact under the same set of circumstances.)

The problem now is that moderate Democrats believe in norms more than reality, and don’t seem as anxious to end the filibuster as their colleagues on the left. A rational Democrat might look at the polarization of the country, the absolute annihilation of those beloved norms as practiced by Republicans, and the impending doom represented by climate change, pair it with the strange resiliency of the GOP, and conclude that unless you find a way to actually do something, you’ll lose. Which would lead you to the obvious conclusion: Destroy the filibuster or watch the American titanic continue to sink.

That isn’t happening. As Politico reported, the man at the top of the party, Joe Biden, doesn’t even believe in filibuster reform, much less abolition.

“The president’s preference is not to get rid of the filibuster,” White House press secretary Jen Psaki said Monday, repeating Biden’s position on maintaining the rule. “His preference is not to make different changes to the rules, to the filibuster rules.”

That’s miserable news to activists who are fighting for policies like the $15 minimum wage, because it signals that nothing will stop Senate Republicans from swatting those policies down at will.

Let’s talk about the filibuster. It exists because of the cloture rule, which requires 60 of 100 senators to vote to end debate on most measures. It has been a long, long time since either party had 60 members, and considering how starkly divided our country is, and how gerrymandered the Senate itself is—to the advantage of low population Republican states—it will be a long time before we do again. When you consider that most major votes fall along strict party lines, you can quickly see the consequence: if one party doesn’t like a policy, they can simply prolong the debate indefinitely until the other side gives up. That’s a filibuster, and the threat of it means it doesn’t even have to be used in many cases, since there’s no point in wasting time with a doomed policy. This leads to a state of partisan gridlock, and there aren’t very many good answers for it.

The origin story of the filibuster is a little arcane, but prior to 1806, there was a rule that allowed a simple majority to end debate. When that was abolished, it wasn’t long before the filibuster became weaponized. Eventually, a rule was made that two-thirds of senators could end debate and force a vote, and in 1975 that number was reduced to 60. Today, that reduction doesn’t matter—there’s no practical difference between requiring 60 or all 100. The exceptions are for executive nominations, which only require a simple majority, and other specific types of legislation such as budget reconciliation, where the debate time is set in advance and no cloture is necessary. That’s why Democrats were eager to put the $15 minimum wage policy into the COVID relief package, since that was a budgetary matter going through the reconciliation process. Once the parliamentarian ruled against them, it meant the wage would have to be brought before the Senate on its own, outside reconciliation which means that—you get it—it will never pass the filibuster.

Beyond the specifics of how the filibuster came into existence and became such a powerful road block, it’s important to understand that it’s very much in line with the idea of the Senate as a slow, deliberative body that isn’t subject to passing whims. That might sound good in theory, but in practice it’s been used as a conservative cudgel against progressive measures as long as the Senate has been around. As an example, during LBJ’s time in the Senate, southerners exploited every procedural angle they could to stifle civil rights measures, or even something as basic as condemning lynchings. Today, the existence of the Senate makes ideas like universal healthcare or free public education or a higher wage non-starters—they have the means at their disposal, even in the minority, to gum up the works.

As you might imagine, activists are incredibly eager for any news that the filibuster might come to an end or at least be reformed. It’s gotten so bad that otherwise well-meaning people on Twitter are being fooled into writing long conspiratorial threads positing that someone like Joe Manchin—a guy who has said over and over that he won’t abolish the filibuster—purposefully tried to tank the COVID relief bill so he could get himself on TV and undermine the filibuster by making vague noises about reform. It’s like Q-Anon for good people, and it’s equally insane. (Also, Manchin already shot it down.)

Biden refusing to publicly support reform isn’t great, but it’s also not decisive. The filibuster can be undone by the Senate itself, and they only need a bare majority of votes. (In the past, you have been able to filibuster an anti-filibuster bill.) Joe Manchin and Kyrsten Sinema are the two Democrats most vocally opposed—remember, the Senate always finds a way—which means that abolishing it altogether isn’t likely in the near future. However, “reform” is possible, and as WaPo noted, the most likely reform is the “talking filibuster.” In that case, you would basically force the other side to literally hold the floor and speak, Mr. Smith Goes to Washington-style, until they gave up. The problem is, they could speak back-to-back. The other problem is…

Before folks get too excited about returning to a talking filibuster, two notes:
(1) The GOP can probably get 41 members to hold the floor for a hell of a long time against, say, HR1, and
(2) While they’re doing that, no votes on anything else—say, confirmations—could happen.

— Josh Chafetz (@joshchafetz) March 7, 2021

Of course, ending the filibuster completely presents its own problems, like the fact that Republicans could very well re-take both chambers of Congress in 2022 and run roughshod over the country. In the meantime, though, the alternative to ending the filibuster is to do nothing. That’s what moderate Democrats have been doing for years, but the situation is now more urgent than ever, and we already know that passivity leads to losing. In other words, there is no alternative.

Either you get rid of the filibuster, or you fail to help the American people until the time comes to lose more elections. There is no gray area here, and anyone who advocates for preserving the filibuster is also advocating for a thumb in the eye of progressive policy. Whether you’re Biden, or Manchin, or anyone else, you cannot choose both.