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The Democrats have recently, and frequently, denounced the filibuster as an anti-democratic relic that hinders the ability of government to get anything done. But they can't get rid of the filibuster right now, because they don't have the votes to pass it.

We focus a lot on Manchin and Sinema. But the reason the filibuster persists isn't because two Senators object to removing it. It's because fifty-two Senators object to removing it. Because obviously every member of the GOP is objecting to getting rid of the filibuster while the Democrats have a trifecta - control of both chambers of Congress and the Presidency. The same dynamic will happen if, as and when the GOP gets a trifecta. Every Democratic Senator will then oppose getting rid of the filibuster.

So here's a thought: why not eliminate the filibuster, but do it during a Congress when neither party has a trifecta?

In other words, suppose the Democrats lose the House or Senate (or both) in 2022. Biden will still be the President, so neither party will have a trifecta. Neither party would know, in advance, which party would be the first party to have the first trifecta without a filibuster. Everyone would have to assess the wisdom of eliminating the filibuster as a policy in the abstract, not just whether they would like to get rid of the filibuster for their party first? It's sort of like the discussion we had in the voting rights thread - one way of making sure that rules are 'just' is if they get agreed upon before any one knows for sure who benefits.

Would people support eliminating the filibuster it it were done at a time when neither party would immediately benefit?

Albaby
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Would people support eliminating the filibuster it it were done at a time when neither party would immediately benefit?

I would, but I might not count as people.
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Would people support eliminating the filibuster it it were done at a time when neither party would immediately benefit?

[Edit - I'm doing a lot of rambling and thinking out loud here. Sorry for the "stream of consciousness" nature of this post.]

Whether people in general support it is irrelevant, at least the way I see things.

The benefit to getting rid of the filibuster is that your party can get things done now, not after the next election (whether mid-term or presidential). If that split government were to get rid of the filibuster, the next time there was not divided government, those on the minority will start paying a steep political price for allowing the filibuster to be removed. The majority party would benefit, while the minority would pay the price.

More correctly, the minority incumbents would pay the price. Who wants to go back to their constituents and hear them complain about how you got rid of the filibuster and now those other people are running amok. They'd face much stiffer opponents in the next primary and would be at risk of losing their jobs, with the power and prestige those jobs carry.

Thinking out loud a bit further, this really only matters to Senators. It is the Senate where the filibuster makes a difference, not so much the House. House members won't have to take much heat - after all, they didn't vote to remove the filibuster, it was the Senators. So that tweaks the election cycle thinking a bit.

It's not really divided government that matters, it's a divided Senate. And we don't allow a divided Senate - there is always a majority and minority party.

Possibly it would make sense when both the house and Senate are of the same party, but the President is not. Getting rid of the filibuster would allow Congress as a whole to pass laws that the President might not be fully in favor of. That would be reigned in a bit by the veto, but it would still allow Congress critters of the majority stripe of the moment to claim they are working, but that lousy president is blocking their progress. So keep us in place and vote for our president as well. So maybe divided government might help if it's the right division.

--Peter
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The benefit to getting rid of the filibuster is that your party can get things done now, not after the next election (whether mid-term or presidential). If that split government were to get rid of the filibuster, the next time there was not divided government, those on the minority will start paying a steep political price for allowing the filibuster to be removed. The majority party would benefit, while the minority would pay the price.

Yes. That's rather the point of my thought experiment. Clearly the minority loses the benefit of being able to stop the majority party's agenda. So if you want to get a sense of whether scrapping the filibuster is a good or a bad idea, one good way to do that is consider killing it when no one knows whether their party will be in the majority or minority the first time it becomes really relevant.

Some of the arguments against the filibuster are appeals to high-minded democratic values, rather than just wanting one's political party to be able to win these legislative fights. The filibuster is attacked as anti-democratic, or a 'Jim Crow relic,' or inherently obstructionist. These are arguments that there shouldn't be a filibuster no matter who is the majority - not merely that we shouldn't have filibusters when Democrats are in charge. And these arguments usually reject the idea that the benefits to allowing the minority party to exercise a 'check' on Congressional action are outweighed by the detriments of the filibuster.

If those arguments are valid, then it would be good public policy to remove the filibuster independently of whether the Democrats held a trifecta or if no one holds a trifecta. And if you remove the filibuster at a time when neither party knows whether it will be the first to have an opportunity to legislate without those constraints (or their opponents!), then you can isolate the merits of the anti-filibuster argument separately from the more opportunistic desire to get one's agenda passed.

So if Chuck Schumer or Jeff Merkley genuinely believe that the filibuster is an inherently bad idea, they will very likely have the chance to actually scrap it over Manchin's objections - at the end of the lame duck session if the Democrats lose either the House or Senate midterms. Unlike now - when zero Republicans would support it - the proposal might actually get some GOP votes.

Albaby
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So if you want to get a sense of whether scrapping the filibuster is a good or a bad idea, one good way to do that is consider killing it when no one knows whether their party will be in the majority or minority the first time it becomes really relevant.

Well---

my complaint is more of a political one than one based on what is good for the country. No politician will support getting rid of the filibuster unless they can get some fairly immediate benefit from doing so.

That is a different issue from what is good for the country. Is it good for the country to have a the filibuster in the Senate? I'm not sure I've wrestled with that question enough to answer it.

But one thought that does come to mind is the nature of the Senate as a whole. The Senate does not really represent the people. It represents the individual states as a whole. It does this by design. Each state gets two Senators. The population of the state doesn't matter. Each state has equal representation. Therefore, the ideas of a minority of the population are over-represented in the Senate.

That might be OK if the individual Senators did what they thought best for their state and for the country. But today I believe that way too many Senators - indeed, too many members of Congress in either house - are doing what is best for their re-election rather than for the people they represent or for their state or the country as a whole.

Why should I, as a Senator or Representative, stand up to my constituents and tell them the truth when it's more likely to help my re-election chances when I allow them to be deceived by lies and half-truths. Or promise them I'll loudly advocate for changes they want that have little chance of actually becoming law. Or do anything that is at the same time good for the country but unpopular at home? It's easier and more likely to get me re-elected to just agree with the loud voices in my district.

I suppose that paints me as a bit of a pessimist about our future. Unfortunately, I see very few in Congress acting in ways that give me hope for the future.

--Peter <== wandering way off topic again, sorry about that
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The GOP doesn't seem inclined to get anything done legislatively. Can't think of much offhand they are passionate about that requires a supermajority any more. Having next to zero interest in a platform or policies to get done, makes the filibuster infinitely more valuable to them than to the left. It's just the left finding it a hindrance to getting even the smallest things passed.

The GOP can get most of their shiznit done with a compliant prez and a sharp Sharpie, with reconciliation and with carveouts. They will have no interest in axing the filibuster no matter what the makeup of the Senate happens to be or which party is in the WH.

All they need to do is sit tight and block everything except taxes & judges.
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The GOP doesn't seem inclined to get anything done legislatively.

I think that's just wishful thinking and complacency. You think the GOP doesn't want to restrict abortion rights in California? Re-write immigration law? Rewrite the Clean Air Act to eliminate EPA's ability to regulate carbon? Impose nationwide "voting security" rules? Maybe pass some sweeping protections preserving the liberty to contract, or take another shot at a beefed up Religious Freedom Restoration Act? How about a nationwide firearms carry permit that pre-empts state licensing requirements?

The Democratic party likes to bring bills to the floor of the Senate that can't pass, partially because they feel it's politically useful to portray the GOP as obstructionist. The Republican party doesn't like to bring bills to the floor that can't pass.

It boggles the mind that people can look at a Republican party that is so incredibly active in passing all kinds of perverse and destructive bills at the state level, but conclude that they wouldn't care in the slightest about passing those same types of things at the federal level if they had a chance.

Albaby
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You think the GOP doesn't want to restrict abortion rights in California? Re-write immigration law? Rewrite the Clean Air Act to eliminate EPA's ability to regulate carbon? Impose nationwide "voting security" rules? Maybe pass some sweeping protections preserving the liberty to contract, or take another shot at a beefed up Religious Freedom Restoration Act? How about a nationwide firearms carry permit that pre-empts state licensing requirements?

Of course the would like to. But, as you so often point out, most of the GOP politicians aren't stupid. Trying to pass some of these things at the federal level would cost them too much. The last two elections taught us a lot.

The GOP is a minority party. So are Democrats, if you want to get picky. Neither have more than 50% of the voters. Currently, I believe independents are the largest group by voter registration, with Democrat second and Republican third. If the GOP wants to retain power, they can't get the independents too mad at them. They'll lose too many independent voters to third parties or <gasp!> to the Democrats.

There is a decent argument that electing Trump in 2016 cost the GOP the House in 2018, then the Senate and White House in 2020. If they got the House and Senate back in 2022 (something that is realistically possible) and then did away with the filibuster to pass these laws (and ignoring the fact that Biden would undoubtedly veto several of them and the likelihood that there won't be enough GOP votes in the Senate to override), there would undoubtedly be a backlash in 2024.

The reason the GOP works on these laws at the state level is that there are several states where these laws are popular enough to get support by their electorate. But they are not popular across the entire country. So they get these laws in place in the states where they can. That makes the GOP ideas look at least plausible. Then they can use that success to carve out enough districts here and there elsewhere in the country to remain viable at the national level. (Plus do a bit of gerrymandering at the state level to keep their thumb on the scales in the states where they are popular.)

But the GOP never really needs to pass national laws to keep their agenda moving forward. They only need do so at the state level. At the national level, it is sufficient to be an impediment to Democrats. That blocking action is on a par with passing laws, at least from what I can tell. And the laws the GOP can pass via reconciliation - like tax cuts - are also extremely popular with their voters.

On the other hand, the Democrat platform hinges significantly on actually doing things - on making government bigger in various places. Blocking the GOP agenda is not a sufficient action in the eyes of those voting for Democrats.

Remember, the main GOP idea is smaller government. You don't get smaller government by passing more laws. But you can keep it from growing by blocking Democrat's new laws.

So the filibuster is an asymmetric tool. It helps the GOP greatly, but isn't as useful to the Democrats. Yes, it would prevent some of the things Democrats see as excesses. (Abortion restrictions, voting restrictions, firearm UNrestrictions.) But the GOP doesn't need those things to be popular with their base. They only need to keep government from growing to get an OK rating from much of their base. But Democrats get a failing grade if they don't pass laws. To get to an OK rating, they need to actually do something - to pass laws. And that would be easier without the filibuster.

--Peter
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Remember, the main GOP idea is smaller government. You don't get smaller government by passing more laws. But you can keep it from growing by blocking Democrat's new laws.

You can get smaller government by passing 'new laws' - because the government is already doing a lot of things that the GOP would like it to stop doing. Gutting the Wagner Act or Clean Air Act or the Civil Rights Act requires new legislation, for the most part. You can't privatize Social Security in a reconciliation bill, either. The fact that the GOP would make life in the U.S. more unpleasant for minorities by repealing anti-discrimination measures rather than by adopting punitive pro-discrimination measures would be cold comfort to the folks hurt by those measures.

And don't forget that 'smaller government' isn't really a cohesive guiding principle for the GOP, but more of a branding exercise. The GOP is perfectly happy to affirmatively use government power to promote its political goals, even as it tries to brand those exercises of governmental power as being in favor of 'freedom' or smaller government. The GOP version of immigration reform or a voting bill, or taking over state regulation of health insurance ("sell over state lines") or judicial claims ("tort reform") or education ("vou, aren't 'small government' measures - but that's not going to stop the GOP from pushing it.

Here's my "Day 100" list of bills that the GOP would adopt in a filibuster-free environment:

1. Crime bill. Always a fan favorite among the base, and usually quite popular among the electorate in general. Get that carceral state up and running again with more federal crimes, tougher sentencing, and juicing up the role of the police! This is where they put their pro-gun measures, BTW - time to get that nationwide open carry permit up and running!

2. Immigration bill. Going to build that wall, toughen up the border, ban sanctuary cities, and generally make life much more unpleasant for people who came here illegally.

3. Voting 'protection' bill. Finally going to have that national voter ID requirement, as well as measures that mandate states purge their voter rolls and 'tighten up' their election procedures.

4. Education bill. Time to make sure that we use the leverage of federal funding to eliminate curriculum choices we don't like. Also time to hit the National Labor Relations Act and put the shiv to public sector unions, like they did in Wisconsin - but we'll put that in the education bill to take advantage of the fact that people are angry that the schools closed.

5. Religious protection bill. Who doesn't love expanding civil rights? Not us here in the GOP - so we're putting forward a bill that ensures that everyone who has a religious objection to anything has a federally enforceable right to insist on exercising that objection.

6. Abortion bill. They don't care if it's popular, this is the big one. Load up a bunch of popular abortion restrictions (banning public funding and restricting abortion after the first trimester) on the front end, add a lot of sneaky regulations on the back end. The increased federal role in health care and health insurance provides lots of vehicles for hitting abortion providers in blue states. Let's modify the ACA so that private health insurance plans that cover abortion services no longer qualify as ACA-compliant, or require that facilities that receive Medicare or Medicaid payments no longer may be used for abortion services.

7. Deregulation ('Economic stimulus and efficiency') bill. Time to take an axe to all the federal regulations they hate! They won't call it that, of course - deregulation comes to town with a banner touting more jobs and less red tape - but it's time to get rid of a lot of those nasty environmental impact statements and regulatory compliance reviews, and get this economy running lean and mean (especially mean) again.



Again, I find it strange that many of the same people that are convinced that the GOP wants nothing more than to turn the U.S. into Gilead are also convinced that the GOP has absolutely nothing it might want to do with legislative power, so it's perfectly okay to get rid of the filibuster. It'll be fine. Everything is fine.

Albaby
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Reads to me like a "Dr. Evil's Bucket List."

Ken
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Here's my "Day 100" list of bills that the GOP would adopt in a filibuster-free environment:

Right. But my contention is that adopting more than one or two of those would be so unpopular with the independents the GOP needs to get elected that they wouldn't have a majority in either side of Congress again for quite a while. Without a majority, their changes would only be temporary - they'd be repealed in the next Congress.

Further, without a periodic majority in the Senate, the right tilt to the Supreme Court would also end as conservative justices leave the court and are replaced with more centrist and liberal justices.

So while they could adopt that list of bills in the absence of a filibuster, I believe they won't because of the longer term risk to their hold on power.

--Peter
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Right. But my contention is that adopting more than one or two of those would be so unpopular with the independents the GOP needs to get elected that they wouldn't have a majority in either side of Congress again for quite a while. Without a majority, their changes would only be temporary - they'd be repealed in the next Congress.

Pshaw. Most of those items are modestly popular. Certainly not among liberals, of course. But passing a crime bill or an immigration enforcement bill or voter ID? You're not alienating very many of the independents who were willing to vote for you in the first place. Those are usually kind of popular among moderates. I deliberately left off some of the really unpopular items, like privatizing Social Security or repealing Obamacare root and branch, for exactly that reason. The GOP could pass six of those seven bills and not worry much at all about disappointing whatever majority coalition had put them in place in the first instance.

The only one of those seven bills that might cross into the 'lose your majority' realm could be the abortion bill. Even so, there's a *lot* of abortion restrictions that are modestly popular (prohibiting public spending, restrictions in the second and third trimester), and they *might* be content just to force people in California to live under those rules.

Again, I think this is a little wishful thinking - believing that the Republican party and their positions are much more unpopular than they actually are. I think the GOP would love to pass those bills and would be very happy to run on them in the immediately following election. Plus, you don't necessarily get to repeal these things in the next Congress. Democrats wouldn't get their turn until they got themselves a trifecta of their own - which could be several Congresses down the line.

Albaby
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