Will 2020 Bring the end of the Filibuster?
- Senate Majority Leader Mitch McConnell and former Senate Majority Leader Harry Reid ignited a hot debate in The New York Times over whether to abolish the filibuster.
- The Senate has already taken significant steps towards doing away with the filibuster by requiring only a simple majority for judicial appointments.
- Should Democrats retake the White House and Senate, it’s not out of the question to imagine a frustrated president persuading Senate Democrats to remove the filibuster.
Senate Majority Leader Mitch McConnell (R-Ky.) and former Senate Majority Leader Harry Reid ignited a hot debate in August when the New York Times ran a pair of dueling op-eds — one by each of the longtime lawmakers — debating whether it’s time to abolish the filibuster.
The argument for abolishing
In favor of abolishing the filibuster, Reid wrote that while arcane, the filibuster is not mandated by the Constitution or part of the framers’ original vision. He argued that while the procedure may have served a purpose in the past of encouraging healthy debate and compromise in what was once known as “the world’s greatest deliberative body,” it now has the effect of stifling the will of the majority of Americans.
Reid named issues like climate change, gun control, and immigration as some of the most pressing problems that Congress has been unable to respond to with legislation due to the filibuster. Rather than helping to create a “cooling saucer” in the Senate for legislation and ideas from the more impulsive House of Representatives, Reid argued that the filibuster now is mostly exploited to make the Senate more gridlocked than ever.
“The Senate is a living thing, and to survive, it must change — just as it has throughout the history of our country,” Reid concluded. “The American people elect leaders to address the issues facing our country, not to cower behind arcane parliamentary procedure.”
The argument for retaining
In a response ten days later, McConnell argued that the filibuster still plays a vital role in our constitutional order, warning that Democrats who want to change the rules for short term policy gains will regret the decision in the long run if and when the political winds shift against them.
While McConnell no longer takes issue with requiring a simple majority vote for judicial nominees, he argues that doing away with the filibuster for legislation is another matter entirely. While the filibuster admittedly does not appear in the Constitution’s text, McConnell wrote, “it is central to the order the Constitution sets forth.” He cited Thomas Jefferson’s principle that “great innovations should not be forced on slender majorities” and noted that James Madison explains in the Federalist Papers that the Senate is designed to act as an “additional impediment” and “complicated check” on “improper acts of legislation” coming out of the House.
“Yes, the Senate’s design makes it difficult for one party to enact sweeping legislation on its own. Yes, the filibuster makes policy less likely to seesaw wildly with every election,” McConnell wrote. “These are features, not bugs.”
He concluded by vowing not to “vandalize this core tradition for short-term gain,” because there are no long-term victories in politics.
What’s going to happen?
The Senate has already taken two significant steps toward doing away with the filibuster entirely. In 2013, a Democratic majority led by Reid decided to change Senate rules so that only a simple majority vote was required to end debate on most of the president’s judicial nominations. Dubbed the “nuclear option,” Democrats circumvented the normal process requiring a two-thirds majority to change procedural rules and muscled the change through with a simple majority.
In 2017, the Senate, now controlled by the GOP, took Reid’s precedent to what McConnell called its logical conclusion and applied the rule to Supreme Court nominations as well. The procedural changes allowed Republicans to confirm a wave of appointments that included two new supreme court justices and 43 new lifetime circuit judges.
Abolishing the filibuster for legislation, however, still faces several huge hurdles. Even if Democrats manage to reclaim the Senate majority in 2020 — an unlikely but not impossible scenario — it would take more than a riled up Democratic base to bring about such a drastic change. As John McCormack pointed out in National Review, at least one or two Democratic senators from red states would have to join with the rest of their party in making a procedural change. Such a change, however would immediately pave the way for policies that most red-state voters disagree with.
This seems unlikely. As recently as two years ago, 33 Democrats joined 28 Republicans in urging Senate leaders Mitch McConnell and Chuck Schumer (D-N.Y.) not to abolish the filibuster. More than two dozen of those Democrats are still in the Senate. Virtually all of them would have to flip flop on the issue for a procedural change to happen.
An irresistible proposition?
Many voices within Democratic party, however, have grown more desperate and agitated in the Trump era over the Washington’s inaction on issues like climate change and gun control. Almost every 2020 Democratic presidential candidate has released sweeping proposals to address these issues, and most of them have said they are at least open to the prospect of abolishing the filibuster. Should Democrats retake the White House and Senate, it’s not out of the question to imagine a frustrated president shoehorning skeptical Senate Democrats into removing the filibuster.
“More and more Democratic activists are picking up on the fact that the filibuster, either by purpose or unintended consequences, is benefiting a certain amount of small-population states,” Jim Manley, a former top aide to Reid and late Senator Ted Kennedy of Massachusetts, told The Atlantic. “There’s an inherent unfairness to the Senate that more and more people are focusing on.”
Manley argues that the fillibuster’s “unfairness” of empowering Senators from small-population red states to effectively stifle the will of a majority of Americans in high-population states will reach a breaking point sooner rather than later. With support from longtime party leaders like Reid, the prospect of going truly nuclear on the longstanding Senate procedure in order to enact the Democrats’ agenda and keep their campaign promises may prove irresistible.
In particular, the urgency and gravity of addressing climate change seems to loom large among Democrats’ concerns.
“We’re not going to change (the climate) overnight, but we have these things we have to do,” Reid told Vox’s Ella Nilsen in August. “America can supply all the energy it needs with wind and sun and geothermal and biomass, all kinds of things. We do not need fossil fuel.”
This, Nilson wrote, is “the crux of why Reid thinks the filibuster needs to be killed. He knows the U.S. — and the world — is running out of time to reverse the effects of climate change. Quick action needs to be taken, but Senate rules could stand in the way.”
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