In an opinion piece for the Washington Post, Sen. Angus King, an independent who caucuses with the Democrats, explains his journey on the filibuster. When he was first elected in 2012, he believed the filibuster should be eliminated, but some of his Democratic colleagues convinced him that it has an important purpose. The best way to sum this up is that the filibuster prevents severe oscillation in the country’s laws. Imagine, for example, a situation where the Affordable Care Act is repealed every time the GOP takes control of the White House and Congress only to be reenacted in some form every time the Democrats retake control.
Of course, that’s not a great example because the Republicans failed to repeal Obamacare when they had the chance during Trump’s first two years in office, but you can imagine laws coming on and off the books much more regularly than they do now. There’s a value in consistency and stability, which affects everything from the ability to do business planning and remain compliant with the law, to maintaining widespread respect for the law. In our current era, where legislation tends to get passed with little or no bipartisan support, it’s more likely that major legislation will be repealed when there’s a change in party control.
As the Democrats look to push through important bills on climate, voting and civil rights, and immigration reform, it’s depressing to think their gains might be wiped out as soon as they lose power. Many New Deal and Great Society programs have survived largely intact through the vagaries of more than a half century of American politics, but it’s hard to picture that kind of stability going forward. If anything, the filibuster’s stabilizing role is more critical than ever.
These are the reasons I’ve generally opposed eliminating the filibuster in the past. Many progressives see it working mainly to foil their ambitions, but I see the Republicans as more of a threat to destroy our past accomplishments than our future ones, and the filibuster acts as a prophylactic that protects Social Security, Medicaid, and much else.
Yet, like Sen. King, I’ve had cause to rethink this position. Here’s how he puts it:
But this argument is sustainable only if the extraordinary power of the 60-vote threshold is used sparingly on major issues or is used in a good-faith effort to leverage concessions rather than to simply obstruct. If, however, the minority hangs together and regularly uses this power to block any and all initiatives of the majority (and their president), supporting the continuation of the rule becomes harder and harder to justify, regardless of the long-term consequences…
…As we enter this new Congress with a new president and a new Senate majority (barely), the question for me is how Mitch McConnell and his Republican colleagues will play their hand; if they are willing to work to find compromise and consensus on important initiatives (infrastructure, voting rights or immigration reform, for example), the importance of getting rid of the filibuster diminishes. If, on the other hand, they just say no, the necessity — and likelihood — of filibuster reform would only increase. That is to say, in large measure the outcome is in their hands.
In the midst of a pandemic and economic contraction, and with the climate crises so urgent, the Democrats have to be able to act. It’s always risky when Congress is incapable of passing laws and there are always some issues that are of pressing concern. Today, we can put gun violence and border control as two items that are calling for some immediate response. Yet, the climate and the pandemic are in their own category, and no rule or precedent or concern about future backlash can allow the Democrats to remain hamstrung in response. If the filibuster must fall to get things done, then that’s on the Republicans for being irresponsible, and the rest of us will just have to weather the consequences.
For Sen. King, there’s another urgent reason to change the filibuster rule. In this example, it might not be necessary to do away with the rule altogether.
I should mention that I believe voting rights are a special case that we must address in light of the nakedly partisan voter-suppression legislation pending in many states. All-out opposition to reasonable voting rights protections cannot be enabled by the filibuster; if forced to choose between a Senate rule and democracy itself, I know where I will come down. As new Georgia Sen. Raphael Warnock (D) noted on the floor recently, “It is a contradiction to say we must protect minority rights in the Senate, while refusing to protect minority rights in the society.”
As you probably know, the filibuster has already been eliminated for presidential appointments and judicial nominees, and only remains for legislation. What King is proposing is that a similar exemption be made for issues related to voting rights and federal elections. I think the Senate Democrats are coalescing around this strategy for passing H.R.1 – For the People Act of 2021, the House’s bill to “expand Americans’ access to the ballot box, reduce the influence of big money in politics, strengthen ethics rules for public servants, and implement other anti-corruption measures for the purpose of fortifying our democracy…”
With the Senate split 50-50 and Vice-President Kamala Harris breaking ties, the Democrats need unanimity to change the rules, and they don’t have unanimity for completely eliminating the legislative filibuster. They seem to have it, though, for exempting H.R.1 from the filibuster. King’s piece is signaling this and also warning McConnell that they may go further if he blocks them at every turn.
It remains to be seen if conservative Democratic senators like Kyrsten Sinema of Arizona and Joe Manchin of West Virginia will go along with changing the filibuster rule for voting bills, but it’s looking like that’s the direction they’re headed. It makes sense for them because they’ll find it harder to get reelected if the Republicans’ nationwide efforts to suppress the vote at the state level are allowed to remain on the books.
Like Sen. King, I’ve come around to the idea that the filibuster is a luxury we may not be able to afford. He’s still on the fence about gutting it entirely, but I think he’s seen the writing on the wall.
