The Filibuster: Mend It, Don't End It?

I'm a Democrat.  The Republicans control the Senate.  So why would I want to write a post about filibuster reform?  The Democrats aren't in a position to do anything about it.

Or are they?

I'm not one to tempt fate, however tempting it may be to do so.  However, pu! pu! pu! (and with a pause to knock on wood, which I just did), current polling suggests that my party has at least a theoretical chance of taking control of the Senate away from Mitch McCONnell next January.  This might not be the best week to lean too hard on that thought, as recent polling has undermined it to a small degree.  Nevertheless, it's there.

Which has raised some media discussion (including, of course, Web discussion) about the idea of doing away with the Senate's filibuster rule in the event that happens, thus giving a Democratic President and a Congress with complete Democratic control a chance to successfully address every legislative goal with a simple majority vote.  In fact, recently, the idea got a very powerful boost from Barack Obama.  In delivering his eulogy for the late, legendary John Lewis, the former president not only endorsed the idea in surprisingly strong rhetoric, but went so far as to link the filibuster itself with systemic discrimination against African-Americans.  (On a side note, I'm glad to see Obama use his post-presidency to say things he felt that he dared not say while he was in office, though I will always deeply regret his decision to wait that long in saying them.)

It's not entirely true that the filibuster was created specifically for the purpose of promoting racism, although it is certainly true that it was used well into the previous century for precisely that purpose.  You can find a good discussion of the rule's history here, in an article which also argues for its abolition.  But it is certainly true that filibusters are still being launched today with that goal in mind, and, even worse, they have been used over the past decade (thanks to Mitch) as little more than a single-minded tool of partisan opposition, in an attempt to realize short-term political gains at the expense of the long-term (and even short-term) needs of the entire nation.

It's tempting to look at the fact that McCONnell is the author of this misery, and hope that, if he loses his race this year for re-election, all might be well again, or at least better.  But it's a pretty resistible temptation, as far as I'm concerned.  For one thing, although he has a strong challenger in Amy McGrath, he has maintained enough of an advantage over her in opinion surveys that give him anywhere from a statistically insignificant lead to a gargantuan one.  But there's another reason for resisting temptation:  McCONnell, who has been an at-the-hip partner with Donald Trump from the very beginning of Trump's term in office, has helped him corrupt nearly the entire Republican Party, including every Republican member of the Senate.  Any successor to him as leader of the Republican caucus would not hesitate to go on engaging in filibuster abuse.  Only a 60-member Democratic caucus would stop that successor, and the chances of getting a 60-member Democratic caucus are, to amend a cliche, not even slim.

And too, as McCONnell himself is fond of reminding all of us (but mostly Democrats), the filibuster rule has always been a two-edged sword, which means that any attempts to modify it are also a two-edged sword.  You'll know exactly what I'm talking about if you remember what ol' Mitch did with Harry Reid's modification of the rule as it applied to non-Supreme Court judicial nominees.  What Reid did was understandable and justified, under the circumstances.  But it also gave us Neil Gorsuch and Brett Kavanaugh for life on the highest court in the land.

So, if the Democrats get a Senate majority out of this election along with a President Joe Biden, what should they do?  Especially if the majority consists of little more than 50 Democrats plus Vice President Whoever-She's-Going-To-Be?

Don't end it.  Mend it.

Here are several ways.

1.  Wait until after the election, to see exact how many seats (if any) the Democrats will gain.  If it's as high enough to give them a 55-seat majority, make that the cut-off for ending or prolonging debate.  The number, like the rule itself, isn't etched in constitutional stone.  As noted in the Atlantic article, it used to take a two-thirds majority to end debate, before that was changed to the current three-fifths cut-off.  Thus, it would still require more than a majority to end debate, but it would be a more reasonable, more achievable number.  It would still serve a counter-majoritarian purpose, but not a crushing one.

2.  Require Senators who want to mount a filibuster to take the floor and attempt to hold it, a la Jimmy Stewart in "Mr. Smith Goes To Washington." Frankly, this is my favorite option.  It's not dependent on a specific numerical standard, one that may or may not be advantageous at varying times.  It requires Senators to put themselves, their debating skills, and their reputations on the line for the sake of a given cause.  And it also subjects them to the pressure of intervening events, e.g., deadlines on certain must-pass bills.  Moreover, it need not require the stamina of one Senator to sustain a filibuster; a Senator could be allowed to yield to a sympathetic colleague, who, in turn, could be permitted to continue it while still attempting to hold the floor for as long as possible.

3.  If all else fails, become more creative in making parliamentary arguments that given bills should be considered budget-related, and thus, under existing Senate rules, not be subjected at all to the potential for a filibuster.  What are some examples of this?

I'll have more to say about that in my next post.  To borrow a phrase from Rachel Maddow, watch this space.