Right now, Democrats control the House, the Senate, and the White House. You’d think that would mean that they can pass all the laws and long-overdue social, political, and economic changes they want. But pesky rules and oft overt (and misplaced) consideration of minority rule has a stranglehold on good and desperately needed populist governance.
Case in point: Rule 22. Senate Cloture, aka “the filibuster.”
First things first — cloture and the filibuster are not the same. This is some real Robert’s Rules of Order chatter, but let me try to break it down a bit.
In the US Senate, the only way to end debate on most legislative matters is to “call the question” or, file cloture. Think of cloture like a pre-vote. And think of the filibuster as a way to kill legislation by simply refusing to agree to vote. Yes, the Senate has to agree to vote before they actually vote (on most matters). But here’s the thing, Senate cloture now requires three-fifths of the full Senate or 60 votes. That means 60 Senators have to agree just to vote on matters that only take 51/100 Senators to pass. Weird, right?
The “filibuster,” then, occurs only when there is a motion to end debate (cloture) and a Senator objects to it. And get this — Senators used to have to occupy the floor and ramble as part of their objection to cloture. But it’s even easier to object now, too. Rather than occupying the floor endlessly, Senators can simply file their objection to ending debate, effectively shifting the burden onto the Senate majority leader to rally 60 votes to get anything done. By the way — not since 1979 has a Senate majority leader had 60 seats in their caucus.
In short, the filibuster allows Senators to, essentially, debate something to death (even without actually debating). It’s quite literally like holding the basketball hostage during recess because you didn’t get chosen to play — except the ball is our federal government, or our democracy (depending on the day).
The thing is, there’s nothing preventing this archaic rule from being changed, or abolishing it altogether — it’s a rule the Senate made for itself, and it can and should be undone. All the Senate really needs is the President’s bully pulpit.
To help make the case, here are the top reasons why President Biden should tank the filibuster right now:
Reason #1: We’re way worse off than you think.
There are two major things at play in our current national dilemma: a fractured economy and a broken politics. On its face (and in a few key industries) the economy is recovering from the pandemic at a rapid pace, but this recovery is actually hopelessly uneven. Wages are stagnant, critical supply chains are broken (which is even affecting the production of some COVID-19 vaccine), and food scarcity is rising.
So, depending on who you are, you might appear to be just fine, but nearly half of all Americans are already falling off of a financial cliff, and many more are unimaginably close to the edge. The stock market is absolutely no indication of the health of the economy, and the relative health of Wall Street right now is obscuring the catastrophic crises still unfolding across the country. Can Biden’s administration do enough to thwart deep recession when some of these bubbles burst? We’ll see.
On the other side, our delicate democracy may have worked well enough to avert a second term of Trumpism, but Trumpism — and the fundamentally anti-democratic ethos it stands for — isn’t dead. It’s very much alive, thriving, and perhaps even more disruptive now, as the Republican party abandons any pretense of conservative principles and embraces obstructionism, exploiting racism and voter suppression as core to their governing philosophy.
A peek beneath the surface of the Senate’s stance on the filibuster begs the question, why is it so hard to get 60 damn votes on matters MOST Americans care about? Quite simply, because Trumpism has swelled in many pockets of Republican strongholds, to the point that it’s choking any shred of comity and collaboration right out of the GOP. So much so that many of them have already quit.
All this means is that, for the foreseeable future, neither party is likely to have 60 members in their caucus to meet such a threshold. It also means tolerating more GOP obstructionism, and dysfunctional government at a time when millions of Americans simply can’t afford it.
Needless to say, this makes our government untenably vulnerable to a truly frightening number of threats both foreign and domestic.
Reason #2: Mitch McConnell can’t be trusted.
President Biden has a long history of favoring bipartisanship and compromise (and even striking personal friendships with Republicans) throughout his political career. But bipartisanship relies on both parties operating in good faith, and if there’s one thing Senate Minority Leader Mitch McConnell has shown over the past several years, it’s that “good faith” isn’t exactly a principle he’s known to espouse.
The GOP Senate leader is single-handedly responsible for much of the corruption in his party and he cannot be trusted to do what’s best for the country. His style of governance demonstrates a singular interest in gaining and maintaining power, placing party above country time and again.
As Majority Leader, he purposely turned the Senate into a “legislative graveyard,” refusing to bring hundreds of bills to the Senate floor for consideration. And he changed the filibuster rules twice to ensure his party could confirm an unprecedented number of ideologues to federal judgeships. He blocked an Obama Supreme Court nominee for 8 months and, in an about-face, rushed a Trump appointee through confirmation in record time and only weeks before Trump’s failed re-election bid.
Not to mention, he voted to acquit a President impeached (a second time) for inciting an insurrection on Jan 6 to overthrow our entire democracy, even after he blamed that same President for his actions that contributed to the aforementioned riot. I admit the unprincipled hypocrisy of Mitch McConnell is actually extraordinarily impressive. And further proof that he’s not a man Joe Biden should bargain with.
Even if the administration were able to peel off a few Republican votes to advance some of Biden’s ambitious agenda — and that’s a big if — it would be nowhere near enough to clear a 60 vote threshold.
You can’t compromise with a brick wall, and Joe Biden shouldn’t waste his time trying.
Reason #3: It’s all about the Midterms.
As the Democratic Party standard-bearer, delivering big on a bold agenda is the best thing Joe Biden can do for Democrats and his legacy. Unlike the days of LBJ, Biden’s biggest challenge is to keep Democrats from Arizona and West Virginia in line with Democrats from New York and California in order to pass his sweeping legislative proposals. And he’s going to have to do that by any means necessary.
Traditionally, midterm elections favor the opposing party of the sitting President. It happened to Bush, it happened to Obama, and it happened to Trump. The only thing that usually averts a midterm blowout is if that sitting President succeeds in taking dramatic action during a crisis to show Americans that they and their party are responsible for pulling the country through. Franklin Roosevelt, for instance, bucked the trend in his first midterm by taking expansive action to combat the Great Depression. It’s particularly encouraging that President Biden seems to be favoring an FDR-style approach to his presidency, but he’s got to make good on those major changes now. Biden knows this.
The COVID relief package was a start, but it was passed through a process called budget reconciliation (requiring a simple majority, or 50% + 1). Not everything can be worked through budget reconciliation, though, as we learned when the $15 min wage increase was ruled out-of-order by the Senate’s Parliamentarian. Millions of Americans who turned out in record numbers to support Joe Biden in 2020 weren’t just voting against Donald Trump, they were voting for major action on issues like climate change, voting rights, healthcare, and getting the pandemic under control. Not all of these matters could be addressed under current Senate rules without the prospect of being filibustered. That means he and the Democrats need to advance a big agenda in this narrow window to boon electoral performance in the 2022 midterms.
There are even more political questions looming as we approach 2024. Biden has been mildly ambiguous about whether or not he’ll run for re-election at the end of his term, though he appears to have signaled that he indeed will seek re-election in 2024.
Reason #4: Time is not on our side.
Right now, 43 states are taking up legislation that would make it exponentially harder for people to vote. In states like Georgia, this is a direct response to Black and brown voters’ power to turn the tide in the 2020 elections, and Republicans are desperate to avoid a repeat. They can’t win by playing fair, so they have to change the rules — and they’re going to succeed in many of these states where they boast a majority or even super-majority.
If Republicans are busy stacking the deck in their favor ahead of 2022 and 2024, that means Biden and the Democrats need to act right now to build on the power of the people and fight back against voter suppression. Eliminating the filibuster would open the door to legislation like HR 1, a landmark voting rights and anti-corruption bill. Again, it’s a very small window that President Biden can’t afford not to take.
In addition to all those voter suppression bills, 2021 is a pivotal year for redrawing Congressional maps, and Republicans have a massive numbers advantage in statehouses. They are undoubtedly going to use that map-drawing power to rig districts across the country to favor themselves. Trump is already posturing for a 2024 run, and the extremist wing of the GOP is actually gaining political and cultural ground. President Biden has to be decisive — making matter-of-fact decisions today with 2022, 2024, and 2030 in mind.
Reason #5: It’s historically been used to benefit right-wing, white supremacist reactionaries.
Republicans — and moderate Democrats — often rift about respecting the tradition of the filibuster, but if you actually dive into the history of the rule, we find tacit exploitation by pro-slavery Senators to beat back legislation that would curb their dependence on slave labor in the 19th century. The Senate altered its rules in 1917, changing the previous filibuster rules to more modern filibuster rules, and the move had direct racist overtones.
As civil rights bills were introduced to the chamber, right-wing, white reactionaries most frequently used the rule to kill the legislation, a theme that continued throughout the 20th century. Of all the legislation blocked by the Senate filibuster from 1917 to 1994, civil rights laws accounted for half, including anti-lynching bills. Just last summer, Senator Rand Paul used the filibuster to stall a law that would’ve made lynching a federal hate crime.
GOP proponents frame the filibuster as a tool that allows “unpopular minority groups protection from oppression,” a repulsive repackaging of civil rights terms. But Republicans are not the victims here.
Senate Republicans have not only denied the racist origins of the modern filibuster and its long history of upholding white supremacy, but they argue that it protects the rights of the minority in the Senate. They claim to act in good faith by allowing Democrats — while in the Senate minority — to keep it. But Republicans use the filibuster twice as often as Democrats, and they use it to block far more popular legislation. It seems the only minority they’re worried about protecting is their own.
The political spectrum in America has shifted and, ideologically, Republicans are in the minority in this country. The GOP can’t stop the tide of change in a fair fight, so they will use anything at their disposal to continue subjecting the country to minority rule in order to uphold white supremacy. We can eliminate at least one tool from their arsenal.
Reason #6: Because he can.
It’s 2021. We’re coming off the heels of a hellacious year that hit us with one crisis after another. The president’s predecessor habitually made each and every single one of those crises immeasurably worse. Our country has suffered and continues to suffer, but we don’t have to sustain the suffering if those we elected to power seize the opportunity to reset course. Biden is on track. And he’s got to govern with the conviction of the 80 million+ who have endowed him with their will.
President Biden has the opportunity to right-size our body politic by governing with an ironclad mandate from the American people.
It’s indisputable, if roles were reversed, Republicans would have no problem flexing all the power and then some to get what they want. However, as it stands, Americans have entrusted Democrats with that power, and they expect it to be used to change things materially. The GOP is not weak by any means, but trust in its ability to govern at the federal level is in question.
And, in order to govern effectively, the filibuster has to go.