The debate over the filibuster isn’t about some arcane Senate procedure--it’s about the crucial policies that it will destroy.
President Joe Biden’s $1.9 Trillion “American Rescue Plan” passed this week—on a party line vote in both chambers. And the only reason the bill even passed a 50/50 vote in the Senate is because it could go through budget reconciliation, an end-around the regular order reserved for bills with consequences for the budget that cannot be filibustered.
You’d think a bill of this magnitude, in this moment of crisis, would have seen Republican support. In fact, the most recent ABC News/Ipsos poll found that 68% of Americans supported the package, including 35% of Republicans and 67% of Independents. On the other hand, polarization and negative partisanship dictate that Republicans oppose the President’s agenda, regardless of its popularity. And that’s not because they don’t believe it will deliver results for the American people, but entirely because it might deliver results—a Democratic President solving problems for the American people could hurt GOP chances at the polls in ‘22.
The filibuster is a choke on democracy.
So here’s the obvious question: if President Biden and the Democrats couldn’t get a single Senate Republican vote for a broadly popular, relatively non-partisan package of bills dedicated to solving the single biggest crisis facing America today, what can they get TEN GOP-filibuster-defeating votes for?
Not. One. Damn. Thing.
The filibuster is an arcane institution that was developed, honed, and perfected by white supremacists hellbent on protecting slavery, Jim Crow, and now voter suppression in the South (for more on the failure of the filibuster, check out Adam Jentleson’s excellent new book Kill Switch). And though it’s often dressed up in the robes of the Founding Fathers as a matter of Senate tradition, it’s not original to the constitution. Not even close. In fact, the framers of the Constitution came together to replace the Articles of Confederation, which required a supermajority to pass everything, rendering its legislative body impotent to do nearly anything. Alexander Hamilton, writing in Federalist #22, summarizes the framers’ thinking:
To give a minority a negative upon the majority is in its tendency to subject the sense of the greater number to that of the lesser number...The necessity of unanimity in public bodies, or of something approaching towards it, has been formed upon a supposition that it would contribute to security. But it's real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.
We shouldn’t be talking about the filibuster.
The conversation shouldn’t actually be about the filibuster. It frames the debate around arcane Senate rules that are really hard to understand. Given the historical disservice that Mr. Smith Goes to Washington perpetrated in lionizing the filibuster as a beacon of democracy, rather than the anti-democratic chokehold it really is, the priming people have on the matter usually benefits the filibuster. And unlike the filibuster of yore, that actually required Senators to keep “debating” the issue, today’s filibuster is simply a matter of registering the threat of a filibuster.
Framing our conversation around the filibuster offers too much figleaf for rightwing Democratic Senators like Kyrsten Sinema and Joe Manchin who use excuses like “bipartisanship” and “senate tradition” to obfuscate around their otherwise hard-to-excuse reluctance to dismantle the filibuster.
So we need to stop talking about the filibuster. Instead, we need to talk about all of the promises Democrats will have to break if we don’t do something about it.
Filibusted: Seven Democratic policy priorities that can’t pass without reform.
So what are Joe Manchin, Kyrsten Sinema, and Democrats generally leaving on the table if we don’t abolish or seriously reform the filibuster?
1) Ending Voter Suppression.
The For the People Act (aka HR1) seeks to address the voter suppression nationwide by creating nationwide automatic voter registration, restoring the franchise to people with felony sentences, expanded early and absentee voting, facilitates vote by mail, protects voting system security, prevents purging of voter rolls, and creates a pathway for DC statehood. It also preempts a raft of new legislation in states all over the country—like the one passed by the Georgia Senate earlier this week—intended to surgically suppress the voting rights of people of color and young people by requiring IDs (while limiting what types voters can bring) or limiting multilingual voting materials. The For the People Act has already passed the House—and would get filibusted in the Senate.
2) Protecting Union Rights.
The Protecting Union Rights Act is a fantastic bill that empowers the National Labor Relations Board to protect unions from union-busting by employers, and offers individuals the right to sue employers who do. It just passed the House on Tuesday—and would get filibusted in the Senate.
3) A Public Option.
Last year, as the first wave of the pandemic hit us, millions of people lost their jobs and, with them, their health insurance. The fact that millions of people were losing their healthcare in a pandemic illustrated the absurdity of our employer-sponsored healthcare system. While the right answer to solving this is actually Medicare for All, President Biden ran on a public option that would be deductible-free and fully subsidized for Americans earning less than 200% of the federal poverty line. Senators Tim Kaine and Michael Bennett introduced the Medicare-X Choice Act to that end last month. It could pass the House and would get filibusted in the Senate.
4) Prescription Drug Affordability.
Nearly one in four Americans reports having rationed their prescription drugs. And that’s because we pay more for prescription drugs than any other country in the world. Much of that is because the federal government is legally barred from negotiating drug prices with manufacturers in a deal struck with the George W. Bush Administration when they passed Medicare Part D. President Biden ran on a platform that would abolish that negotiation ban, allowing Medicare to negotiate prescription drug prices on behalf of every single American. To that end, the House passed HR3, the Elijah E. Cummings Lower Drug Costs Now Act, which the CBO estimated would save Medicare nearly half a trillion dollars over 10 years, back in 2019. And despite the fact that 62% of Republicans believe that drug costs are too expensive, Republican Senators would ensure that that, too, would get filibusted in the Senate.
5) A Pathway to Citizenship.
The Biden-Harris Administration has unveiled the US Citizenship Act of 2021 a sweeping immigration reform bill that would provide a “roadmap to citizenship” for undocumented Americans, including Dreamers, TPS holders, and immigrant farmworkers. It would seek to eliminate barriers that divide immigrant families, prohibit religious discrimination in immigration policies, and improve the immigration court system. As you likely guessed, this bill would get filibusted in the Senate.
6) Raising the Minimum Wage.
As I’ve written in The Incision prior, essential workers need and deserve a $15 minimum wage. The effort to pass it along with the American Rescue Plan COVID-19 relief legislation was blocked by the Senate Parliamentarian whom Democrats decided not to overrule. Though so-called “moderates'' like Manchin and Sinema oppose raising the wage to $15/hour, they may be open to raising it still. Manchin suggested an $11/hour minimum wage. Though he thinks that “there’s not one Senator out of 100 that does not want to raise the minimum wage,” I’m rather sure this, too, would get filibusted in the Senate.
7) Green economy.
President Biden doesn’t quite call his ambitious climate agenda a Green New Deal, but he essentially ran on a plan to get to 100% renewable energy by 2035 by fundamentally rebuilding our infrastructure and creating millions of green jobs...which is basically a Green New Deal. Arguably, this could pass through budget reconciliation—and it would have to because there’s no way it could get 60 votes. It would get filibusted in the Senate.’
History as context.
The debate we’re having isn’t about an arcane set of Senate procedures. It’s about the political will to actually pass public policy that the American people really need right now. It’s not about Senate decorum or precedent, it's about whether or not we’re willing to tackle climate change, help seniors afford their prescription drugs, or raise the earning floor for working Americans. It’s not even about the racist history of a procedure used to give tyranny to the minority over the will of the majority...okay, maybe it is about that. Because if we can’t do something about the filibuster, the people who’ll be hurt most by our failure to move existentially important policy through Congress are the same people whom the filibuster has always been wielded against: Black people, brown people, and the poor.
History offers an important lesson. In 2013, then Senate Majority Leader Harry Reid ended the filibuster for most Presidential nominees. He began that session in long-standing opposition to the idea: “You should not be able to come in here and change willy-nilly a rule of the Senate,” he said in 2005. But after he realized that then Senate Minority Leader Mitch McConnell used the filibuster to gum up any and every effort to fill President Obama’s administration with capable appointees he went “nuclear.”
As vociferous as Manchin and Sinema have been in their opposition to killing the filibuster, there may be some daylight opening up: Last weekend, Manchin indicated that he’d be open to “reforming” the filibuster: “If you want to make it a little bit more painful, make him stand there and talk,” Manchin told NBC’s Chuck Todd, “I’m willing to look at any way we can, but I’m not willing to take away the involvement of the minority.”
Well, Senator Manchin, what matters more? The “involvement of the minority” or the will of the majority...and healthcare, prescription drug affordability, voting rights, union rights, a pathway to citizenship, and new green infrastructure?