Tag Archives: filibuster

A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law  bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats  to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law  would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

If We Can’t Get Rid Of It, Reform It

One of the very few things in today’s political environment that is abundantly clear is the critical need to pass election reform. We need federal legislation to outlaw gerrymandering and a variety of vote suppression tactics, to make it easier rather than more difficult to vote, and to restore trust in the maxim “one person, one vote.”

The only impediment to that critical necessity is the continued existence of the current form of the filibuster, which has made a mockery of majority rule. As everyone reading this blog knows, the way in which the filibuster now works requires any measure to be passed by super-majority.  Wedded to Republican nihilism, It has brought the business of government to a standstill.

As a recent article from The Brookings Institute noted, the Senate’s ability to pass pending voting rights legislation–which is favored by large majorities of Americans and even by majorities in both houses of Congress–is the filibuster.

I have previously shared the filibuster’s relevant history, but let me repeat it.

Originally, the use of the filibuster was based on a recognition that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case (or at least exhausted their argument,) they would leave the Senate floor and allow a vote. The first change came In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat.  The Senate responded by adopting a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules; this time, the change made it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans  from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

With Senators like Manchin  (aka McConnell’s favorite Democrat) defending the filibuster, eliminating it is probably not an option. But even Manchin has displayed an openness to revising it. In the Brookings  article linked above, the authors share a number of proposals for amending the process, and consider the pros and cons of each. They look at a variety of ideas: reducing the number of senators needed to open debate in the face of a filibuster; requiring the objectors to be present with one of their number speaking at all times during a filibuster; and shifting the burden to those mounting the filibuster–making them muster the votes required to maintain the filibuster whenever it’s challenged, instead of enlisting the 60 who wish to proceed to so vote.

Whatever the merits of these proposals–and I definitely like the one requiring these obstructionists to stay on the Senate floor and bluster throughout–I especially like the paper’s final suggestion–to carve out an exception for voting rights, modeled on the exception that already exists for fiscal measures:

In Part III, we advocate for one additional option that the authors have previously written about, and that has been getting some significant proponents of late. We term that approach “democracy reconciliation.” It is based upon the existing practice of budget reconciliation, which allows certain fiscal measures to have an up-or-down simple majority vote. As we explain, we would craft a similar exception for voting measures, allowing them a similar opportunity to be voted upon by a majority. Reconciliation operates on a key principle known as the Byrd Rule, named after the late West Virginia Senator Robert Byrd. Because the current fate of the filibuster swirls around his successor, Senator Manchin, one may refer to this hoped-for new compromise of democracy reconciliation as “the Byrd-Manchin” Rule.

Name it anything–just get it done. Quickly.

 

 

Stuff I Know You Know…

At noon today, I’m speaking (via Zoom) to a Columbus, Indiana human rights organization. Here are my prepared remarks. (Long one–sorry.)
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Over the past few years, Americans have begun to recognize how endangered our representative democracy has become.

Pundits and political scientists have their pet theories for how this has happened. Some of that analysis has been intriguing, and even illuminating. Until lately, however, none of it had attempted to answer the important question: what should we do to fix our problems, and why should we do it? As the causes of our dysfunctions have become more obvious, however—as it has become very clear that we are caught up in an obsolete system that facilitates the dominance of a clear minority of our voting population– scholars are urging reforms that focus on protecting voting rights, and restructuring America’s antiquated electoral processes.

First, some background.

You know, we humans don’t always appreciate the extent to which cultural or legal institutions—what we might call folkways, our longtime accepted ways of behaving and interacting—shape the way we understand the world around us. We rarely stop to consider things we simply take for granted—the conventions that constitute our daily lives. We drive on this side of the road, not that side; our marriages consist of two adults, not three or four; when our country holds elections we get to participate or abstain. Most of us accept these and multiple other conventions as givens, as “the way things are.” In some cases, however, institutions, systems and expectations that have worked well, or at least adequately, for a number of years simply outlive whatever original utility they may once have had, made obsolete by modern communications and transportation technologies, corrupt usages or cultural and demographic change.

I want to suggest that such obsolescence is a particularly acute element of American political life today. Let me share some of the more important examples that currently work in tandem to disenfranchise literally millions of Americans who are entitled to have their voices heard and their votes counted.

Perhaps the most significant problem of today’s electoral system is partisan gerrymandering. As you know, every ten years, after each census, state governments redraw state and federal district lines to reflect population changes. States—including Indiana– are engaged in that exercise as we speak. Except in the few states that have established nonpartisan redistricting commissions, the party in control of the state legislature when redistricting time rolls around controls the line-drawing process, and Republican or Democrat, they will all draw districts that maximize their own electoral prospects and minimize those of the opposing party.

Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and also point out that the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce “partisan rigidity,” the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways.

Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously doesn’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no meaningful choice.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

Worst of all, in safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties and— especially but not exclusively in the Republican party— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

After the 2010 census, Republicans dominated state governments in a significant majority of states, and they proceeded to engage in one of the most thorough, most strategic, most competent gerrymanders in history. The 2011 gerrymander did two things: as intended, it gave Republicans control of the House of Representatives; the GOP held 247 seats to the Democrats’ 186, a 61 vote margin– despite the fact that nationally, Democratic House candidates had received over a million more votes than Republican House candidates. But that gerrymander also did something unintended; it destroyed Republican party discipline. It created and empowered the significant number of Republican Representatives who make up what has been called the “lunatic caucus” and made it virtually impossible for the Republicans to govern.

Then, of course, there’s the problem that pretty much everyone now recognizes: The Electoral College. In the 2016 election, Hillary Clinton won the popular vote by approximately 2.85 million votes. Donald Trump won in the Electoral College due to a total vote margin of fewer than 80,000 votes that translated into paper-thin victories in three states. Thanks to “winner take all” election laws, Trump received all of the electoral votes of those three states. “Winner take all” systems, in place in most states, award all of a state’s electoral votes to the winner of the popular vote, no matter how close the result; if a candidate wins a state 50.5% to 49.5% or 70% to 30%, the result is the same; votes cast for the losing candidate simply don’t count.

Problems with the Electoral College are widely recognized. Among them are the outsized influence it gives swing states, the lack of an incentive to vote if you favor the minority party in a winner-take-all state, and the over-representation of rural voters and less populated states—what one scholar has called “extra votes for topsoil.” (Wyoming, for example, our least populous state, has one-sixty-sixth of California’s population, but it has one-eighteenth of California’s electoral votes.) The Electoral College
advantages rural voters over urban ones, and white voters over voters of color. (Of course, it isn’t only the Electoral College that is a mismatch between our professed belief in “one person, one vote”—the fact that each state gets two Senators means that the 40 million people who live in the 22 smallest states get 44 senators to represent their views, while the 40 million people in California get two. We are unlikely to change that particular element of our system, but there’s no reason to add insult to injury by keeping the Electoral College.)

Akil Reed Amar, who teaches Constitutional Law at Yale Law School, criticizes the justifications we often hear for the Electoral College. As he has pointed out, the framers put the Constitution itself to a popular vote of sorts, provided for direct election of House members and favored the direct election of governors. The Electoral College was actually a concession to the demands of Southern slave states. In a direct-election system, the South would have lost every time because a huge proportion of its population — slaves — couldn’t vote. The Electoral college enabled slave states to count their slaves in the electoral college apportionment, albeit at a discount, under the Constitution’s three-fifths clause.

Americans pick mayors and governors by direct election, and there is no obvious reason that a system that works for the nation’s other chief executives can’t also work for President. Amar points out that no other country employs a similar mechanism.

As Representative Jamin Raskin points out, the Electoral College is an incentive to cheat:
“Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.”

Gerrymandering and the Electoral College are the “big two,” but there are other changes that would reinvigorate American democracy. The way we administer elections is one of them.

State-level control over the conduct of elections made sense when difficulties in communication and transportation translated into significant isolation of populations; today, state-level control allows for all manner of mischief, including—as we’ve recently seen– significant and effective efforts at vote suppression, and what is especially worrisome, efforts to put partisans in charge of counting the votes. But even without intentional cheating, state-level control allows for wide variations from state to state in the hours polls are open, in provisions for early and absentee voting, and for the placement  and accessibility of polling places. In states that have instituted “Voter ID” laws, documentation that satisfies those laws varies widely. (Voter ID measures are popular with the public, despite the fact that study after study has found in-person voter fraud to be virtually non-existent, and despite clear evidence that the impetus for these laws is a desire to suppress turnout among poor and minority populations likely to vote Democratic.)

State-level control of voting makes it difficult to implement measures that would encourage more citizen participation, like the effort to make election day a national holiday or at least move election day to a weekend. A uniform national system, overseen by a nonpartisan or bipartisan federal agency with the sole mission of administering fair, honest elections, would also facilitate consideration of other improvements proposed by good government organizations.

The entire registration system, for example, was designed when registrars needed weeks to receive registration changes in the mail to produce hard copy voter rolls for elections. We are in a very different time now, and making registration automatic, moving to same day registration and on-line registration systems, adopting no-excuse absentee ballots or universal vote by mail, eliminating caucuses, mandating at least 14 hour election day opening times and one week of early voting would make for a better, more modern and much more user-friendly American election system.

I don’t need to belabor the next one: Campaign Finance/Money in Politics. Common Cause sums it up: “American political campaigns are now financed through a system of legalized bribery.” Other organizations, including the Brennan Center for Justice, the Center for Responsive Politics, and the National Institute for Money in State Politics, among others, have documented the outsized influence of campaign contributions on American public policy, but contributions to parties and candidates aren’t the only ways wealthier citizens influence policy. The ability to hire lobbyists, many of whom are former legislators, gives corporate interests considerable clout. Money doesn’t just give big spenders the chance to express a view or support a candidate; it gives them leverage to reshape the American economy in their favor.

Even worse, a system that privileges the speech of wealthy citizens by allowing them to use their greater resources to amplify their message in ways that average Americans cannot does great damage to notions of fundamental democratic fairness, ethical probity and civic equality.

Until recently, the role played by current use of the filibuster has been less well recognized, but it is no less destructive of genuine democracy.

Whatever the original purpose or former utility of the filibuster, when its use was infrequent and it required a Senator to actually make a lengthy speech on the Senate floor, today, the filibuster operates to require government by super-majority. It has become a weapon employed by extremists to hold the country hostage.
The original idea of a filibuster was that so long as a senator kept talking, the bill in question could not move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority to vote to end a filibuster.

Then in 1975, the Senate changed several of its rules and made it much easier to filibuster. The new rules effectively allowed “virtual” filibusters, by allowing other business to be conducted during the time a filibuster is theoretically taking place. Senators no longer are required to take to the Senate floor and argue their case. This “virtual” use, which has increased dramatically as partisan polarization has worsened, has effectively abolished the principle of majority rule: in effect, it now takes sixty votes (the number needed for cloture) to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of those who crafted our constitutional system, it has brought normal government operation to a standstill, and allowed small numbers of senators to effortlessly place personal political agendas above the common good and suffer no consequence.

My final two targets aren’t part of our governing or electoral systems, but they have played massively important roles in producing America’s current dysfunctions. The first is substandard civic education. This civic deficit was a primary focus of my scholarship for a very long time. Let me just say that when significant segments of the population do not know the history, philosophy or contents of the Constitution or the legal system under which they live, they cannot engage productively in political activities or accurately evaluate the behavior of their elected officials. They cannot be the informed voters the country requires. We see this constitutional ignorance today when people claim that mask or vaccination mandates infringe their liberties. The Bill of Rights has never given Americans the “liberty” to endanger their neighbors.

The final institution that has massively failed us also doesn’t need much editorial comment from me: the current Media—including talk radio, Fox News, social media and the wild west that is the Internet.

Several studies have found that the greatest contributor to political polarization is the growing plurality of news sources and increasing access to cable television. People engage in confirmation bias—they look for viewpoint validation rather than exposure to a common source of verified news.

The Pew Research Center published an extensive investigation into political polarization and media habits in 2014; among their findings, unsurprisingly, was that those categorized as “consistent conservatives” clustered around a single news source: 47% cited Fox News as their main source for news about government and politics, with no other source even close. Among consistent liberals, no outlet was named by more than 15%.

People who routinely consume sharply partisan news coverage are less likely to accept uncongenial facts even when they are accompanied by overwhelming evidence. Fox News and talk radio– with Rush Limbaugh and his imitators– were forerunners of the thousands of Internet sites offering spin, outright propaganda and fake news. Contemporary Americans can choose their preferred “realities” and simply insulate themselves from information that is inconsistent with their worldviews.

Americans is marinating in media, but we’re in danger of losing what used to be called the journalism of verification. The frantic competition for eyeballs and clicks has given us a 24/7 “news hole” that media outlets race to fill, far too often prioritizing speed over accuracy. That same competition has increased media attention to sports, celebrity gossip and opinion, and has greatly reduced coverage of government and policy. The scope and range of watchdog journalism that informs citizens about their government has dramatically declined, especially at the local level. We still have national coverage but with the exception of niche media, we have lost local news. I should also point out that there is a rather obvious relationship between those low levels of civic literacy and the rise of propaganda and fake news.

In order for democracy to function, there must be widespread trust in the integrity of elections and the operation of government. The fundamental democratic idea is a fair fight, a contest between candidates with competing ideas and policy proposals, followed by a winner legitimized and authorized to implement his or her agenda. Increasingly, however, those democratic norms have been replaced by bare-knuckled power plays. The refusal of Mitch McConnell and the Republicans in the Senate to “advise and consent” to a sitting President’s nominee for the Supreme Court was a stunning and unprecedented breach of duty that elevated political advantage over the national interest. The dishonesty of that ploy was underlined by his rush to install an ideologically-acceptable replacement almost immediately after Ruth Bader Ginsberg died. No matter what one’s policy preferences or political party, we should all see such behaviors as shocking and damaging deviations from American norms—and as invitations to Democrats to do likewise when they are in charge.

If that invitation is accepted, we’ve lost the rule of law.

One outcome of these demonstrations of toxic partisanship has been a massive loss of trust in government and other social institutions. Without that trust—without a widespread public belief in an overarching political community to which all citizens belong and in which all citizens are valued—tribalism thrives.  Especially in times of rapid social change, racial resentments grow. The divide between urban and rural Americans widens. Economic insecurity and social dysfunction grow in the absence of an adequate social safety net, adding to resentment of both government and “the Other.” It is a prescription for civic unrest and national decline.

If Americans do not engage civically in far greater numbers than we have previously—If we do not reform outdated institutions, protect the right to vote, improve civic education, and support legitimate journalism—that decline will be irreversible.

The good news is that there is evidence that such engagement is underway. We the People can do this.

Thank you.

 

Policy And Procedure

So here’s the problem: as Paul Krugman recently noted in his weekly newsletter, Will Rogers oft-quoted line — “I am not a member of any organized political party;  I am a Democrat” —is still accurate.

Today’s Republican Party has morphed into an ideological monolith, mainly constructed around racism and a visceral rejection of the “other.”  That has led to a Democratic Party that encompasses, and must appeal to, pretty much everyone else–from the sane centrists fleeing what has become of the GOP to the moderate left to America’s version of the far left.  In order to win elections with such a coalition, Democrats have to satisfy multiple constituencies. (As Krugman also observed, there’s a positive side to this reality–“this makes it harder to sell your soul, because it’s not clear who you’re supposed to sell it to.”)

The monolithic nature of the current GOP has helped it hold power despite the fact that we have literally mountains of research attesting to the fact that the party’s priorities are widely–sometimes wildly–unpopular. But (as a political scientist friend of mine recently explained over coffee) we fail to appreciate the extent to which Republican electoral successes are also a consequence of the filibuster.

Bear with me.

Even moderately honest observers realize that GOP legislators routinely put partisan advantage over the common good of the country. What we fail to appreciate is that most Democratic lawmakers–not all, certainly, but most–truly do try to put country first. (Granted, that doesn’t mean that the policies they pursue are necessarily correct, or that their motives are always pure.) Part of putting country first is protecting Americans from some truly awful policies that Republicans want to impose.

Democrats defending the filibuster point to precisely that function. They argue that in an inevitable future, when Republicans gain control of the Senate, Democrats will need the filibuster to keep the GOP from enacting damaging policies. As my friend pointed out, that impulse–to protect the country from policies that are broadly harmful and unpopular–actually helps the GOP.

He provided two illuminating examples.

In Indiana, when the Republican Governor and legislature passed a bill that would have allowed merchants to discriminate against LGBTQ customers, the blowback was intense, and the effort ultimately failed. The law was “clarified” to avoid its obvious goal. The very public nature of the response also “educated” a lot of people who don’t follow politics–and in the more urban parts of the state, at least, did the GOP no favors.

The more recent example is the Texas anti-choice vigilante law. For a number of years, pro-choice voters have relied upon the courts to protect their right to reproductive freedom, leaving them free to vote on the basis of other issues. It remains to be seen how much the outrage over the Supreme Court’s refusal to step in will motivate voters, but at this point, it looks like Texas Republicans have handed the Democrats a powerful issue.

My friend’s point is simple: let the GOP enact their pet policies, many if not most of which research tells us are very unpopular. Don’t use the filibuster to protect the party from the consequences of its own venality. Yes, the country will initially suffer the results –but the likely negative reaction will, once again, “educate” voters, clarifying the importance of  registering their disapproval with their votes. 

Obviously, there are other structural elements of our electoral system protecting an unpopular GOP from losses it would otherwise incur–as enumerated in this story in Vox.        Gerrymandering and the Electoral College are huge hurdles, as is the growing tendency to view political party affiliation as part of one’s tribal identity, and to vote on that basis rather than on reaction to policy. But the less-recognized use of the filibuster as a mechanism to keep Republicans from enacting a toxic agenda is counterproductive.

Also, since it is a rule made by the Senate, it ought to be easier to eliminate. Someone needs to “educate” Manchin and Sinema.

 

More Than One Way To Skin The Filibuster Cat…

Americans who may never have heard of the filibuster–or who were previously only dimly aware of that parliamentary mechanism–are passionately debating its continued existence. One reason so many of us favor its elimination is that the filibuster in its current iteration bears little or no resemblance to the original rule.

Whatever the original purpose of the filibuster, for many years its use was infrequent. For one thing, it required a Senator to actually make a lengthy speech on the Senate floor–unlike today. In its current form, it operates to require government by super-majority–it has become a weapon employed by extremists to hold the country hostage.

A bit of history is instructive.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules, making it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans  from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

There is really no principled argument for maintaining the filibuster in its current iteration. But there may be alternatives to simply jettisoning it, as Ezra Klein points out in a recent column about Joe Manchin.

Klein is clear-eyed about Manchin’s purported reasons for maintaining the filibuster– devotion to a long-gone “bipartisanship.”

At his worst, Manchin prizes the aesthetic of bipartisanship over its actual pursuit. In those moments, he becomes a defender of the status quo and, paradoxically, an enabler of Republican partisanship. But over the past 24 hours, a plausible path has emerged through which Manchin could build a more cooperative and deliberative Senate. It’s narrow, but it’s there.

Part of the strategy relies on changing the rules. Manchin has said, over and over again, that he will not eliminate or weaken the filibuster. I wish he’d reconsider, but he won’t. The possibility remains, however, that he will strengthen the filibuster.

Klein points out how dramatically the filibuster has morphed from its original form, and considers–in lieu of simply getting rid of it–how it might be returned to something approximating its historical form.

It’s possible to imagine a set of reforms that would restore something more like the filibuster of yore and rebuild the deliberative capacities of the Senate. This would begin with a variation on the congressional scholar Norm Ornstein’s idea to shift the burden of the filibuster: Instead of demanding 60 votes to end debate, require 40 (or 41) to continue it.

That would return the filibuster to something more like we imagine it to be: Impassioned minorities could hold the floor with theatrical speeches, shining public attention on their arguments, but the majority could end debate if the minority relented. To sustain this kind of filibuster would be grueling, which is as it should be. The filibuster is an extraordinary measure, and it should require extraordinary commitment to deploy.

The majority, for its part, would have to carefully weigh the consequences of proceeding with partisan legislation: They would gamble weeks or months of Senate time if they chose to face down a filibuster, with no guarantee of passage on the other end. A reform like this would demand more from both the majority and the minority and ignite the kinds of lengthy, public debates that the Senate was once known for.

In leaked audio published by The Intercept on Wednesday, Manchin appeared to favor exactly this kind of change. “I think, basically, it should be 41 people have to force the issue versus the 60 that we need in the affirmative,” he said.

I think that most of us who are exasperated by the constant, dishonest and sneaky use of the filibuster in its current form would be willing to give this modification a try. 

Fingers crossed.