The Wrongologist

The Daily Escape:

Inspiration Point, late winter, Bryce Canyon, NP UT – March 2021 photo by CampsG

Biden’s pandemic relief plan became law, and the Senate confirmed Merrick Garland as attorney general. Those, and a few more cabinet level confirmations are all that’s likely to pass the Senate before the 2022 mid-terms.

That’s because the American Relief Plan, along with cabinet confirmations, and Supreme Court justices are no longer subject to the filibuster, while most other bills are.

Back in the dim past, when Sen. Harry Reid (D-NV) was Majority Leader, Obama could not get his federal judge nominees an up or down vote because they were blocked by the 60-vote requirement to close debate (“cloture”) in the Senate.

In November 2013, Reid and Senate Democrats used the “nuclear option” to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. In April 2017, Mitch McConnell and Senate Republicans extended the nuclear option to Supreme Court nominations to end debate on the nomination of Neil Gorsuch, when McConnell couldn’t get the required 60 votes for ending the debate.

Today, the three-fifths majority vote (60 of 100) is still required to end debates on legislation. That means we most likely won’t see HR-1 (S-1 in the Senate) the bill to reform voting rights in America make it to an up or down vote in the Senate, as long as there is a filibuster.

That’s probably also true for the minimum wage, for Biden’s infrastructure initiative, and other wish-list items like DC statehood, a carbon tax, and reasonable gun legislation.

The best argument for keeping the filibuster is that it keeps the Party in the minority from being steamrollered by the Party in the majority, what pundits call the “tyranny of the majority”. Both Parties should take stock of everything they were able to delay or derail because of the filibuster. Then they should imagine all of that (and more) enacted by simple majority vote, when the opposition Party regains control of Congress and the presidency, which eventually will happen.

The worst argument is that it fosters compromise. But we know that the Senate is substantially more partisan today than it has ever been in the modern era. In fact, we’ve seen limited compromise on legislation, unless there was no way around it, such as when needing to extend the federal borrowing limit.

The Democrats haven’t been shy about using the filibuster. When Sen. Chuck Schumer (D-NY) was minority leader, he used the filibuster in 2019 to block funding for construction of Trump’s border wall. Dems used it twice to impede passage of the Cares Act, forcing Republicans to agree to changes including a $600 weekly federal unemployment supplement. They used it to block legislation to force “sanctuary cities” to cooperate with federal officials, and to stop a prohibition on taxpayer funding of abortion. And a few other times while Trump was President.

So, should the filibuster go? It should, at least in its current form. Several proposals to change the filibuster are out there. From the NYT:

“One proposal would bar its use for legislation involving voting rights or other democratic expansions. Another would require the old-fashioned “talking” filibuster. A third would entail holding a series of cloture votes spaced three days apart, lowering the number of senators needed to end the filibuster each time.”

The Democrats do not currently have the votes to end the filibuster, since Sens. Manchin (D-WVA) and Sinema (D-AZ) say they will not vote to abolish it. We’ll have to wait to see whether they back McConnell against Schumer and Biden when the Republicans launch a filibuster against the major Biden initiative that requires 60 votes for cloture. Or, if they’re open to one of the reforms mentioned above.

Wrongo favors eliminating the filibuster at least for bills that concern voting rights. That would allow the H-1/S-1 bill to move forward at a time when Jim Crow-style laws are likely to be re-introduced in many Republican-controlled states. The Republican falsehoods surrounding the 2020 election, culminating in insurrection, should convince Democrats that HR-1/S-1 is worth passing, even if the price is eliminating, or partially eliminating the filibuster.

Manchin and Sinema can probably be strong-armed into agreeing with that.

In 2017, a Republican-controlled Senate found it easy to forget tradition and eliminate the filibuster for the confirmation of Supreme Court justices, despite that being the key instance where the requirement for a broad, bipartisan vote should be obvious.

So, why should it be such a problem to remove it entirely? The framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation; that came into being in 1837. It has been modified many times since.

Now, it’s long overdue for the filibuster to go. It’s the biggest roadblock to democracy in America.