Why Democrats Need to Eliminate the “Virtual Filibuster” to Get Any More Done
by MARK GABRISH CONLAN
Copyright © 2021 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
It’s been a tumultuous two months since last I posted on this blog. President Joe Biden and Vice-President Kamala Harris finally got to take office on January 20, despite the best efforts of Republican Party activists to deny them the offices to which they were rightfully elected. The Republicans’ efforts to keep Donald Trump in the Presidency and Biden out of it involved both legal and extra-legal means – the legal means included not only bizarre lawsuits even Trump’s own appointees to the judicial bench could not sustain but an attack on the competency of the U.S. Postal Service and a blizzard of laws, which the GOP nationwide is pushing even harder now to make sure Democrats never win a national election again.
The extra-legal means, of course, were on full display on January 6, 2021, two weeks before the scheduled inauguration, when thousands of Republican and Trump supporters massed in Washington, D.C. and staged a physical attack on the Capitol during what was supposed to be the routine counting of the various states’ electoral votes. The mob that stormed the Capitol that day weren’t just calling for the heads of Democrats – among their chants were, “Hang Mike Pence!,” and they were targeting him because some Right-wing author had published on some Web site somewhere an article arguing that Vice-President Pence could personally refuse to certify the election and keep himself and Trump in office despite losing both the popular and the electoral vote. Pence refused to use this alleged “power” and tried to explain to Trump that he really didn’t have it, and Trump’s response was to tell the crowd assembled to storm the Capitol at his direction that if Pence didn’t single-handedly throw him the election, “we’re not going to like him so much anymore.”
Even before January 6, I had planned to write an article in these pages saying flat-out that the U.S. Republican Party has rejected the whole idea of democracy. That’s become even more clear since Biden’s inauguration. The two biggest things Republicans have done since Biden became President are form a united phalanx of opposition against Biden’s COVID-19 relief bill – even though the bill was polling up to 71 percent approval, not a single Republican in either the House or the Senate voted for it – and launch a relentless drive for voter suppression. Over 400 bills to make it harder to vote – and particularly harder for people of color, low-income people, working people, students and others who generally don’t vote Republican – to vote.
Instead of attempting to expand the appeal of their party beyond its existing base of Americans who tend to be older, whiter and more male than the rest of the country, the Republicans are determined to stay in power indefinitely by making sure people who would vote against them won’t be able to vote at all. They have become what Leonard Schapiro, in his book The Russian Revolutions of 1917, called the Russian Bolsheviks: “a minority determined to rule alone.” And having failed in their attempt to overthrow democratic government through a violent revolution, the Republicans are redoubling their efforts to regain and keep power through ostensibly legal Constitutional means. The modern-day Republican Party has no respect for democracy or “the will of the people” unless “the will of the people” coincides with theirs. Their attitude towards election outcomes is “heads we win, tails you lose.”
Democrats in Washington, D.C. are in an odd mood combining ebuillence and frustration. The joy of having got through a $1.9 trillion COVID relief package through both houses in Congress – thanks in large part to popular demand, not so much because people thought it would be good public policy as because it promises most Americans $1,400 in ostensibly “free” money – is tempered by the realization that virtually none of the rest of Biden’s and the Democrats’ agenda is likely to pass in a closely divided Congress, especially since – unlike the Republicans, who are unified behind an agenda to make rich people richer, get rid of regulations on business and use the power of the government to police people’s sex lives – Democrats remain badly split. Long-time progressive demands like raising the minimum wage simply don’t have unanimous support among the Democrats in Congress, as Arizona Senator Kyrsten Sinema (a former Green Party member and an open Bisexual) demonstrated by duplicating her late predecessor John McCain’s dramatic “thumbs down” vote not to preserve millions of less affluent Americans’ access to health care but to keep the so-called “working poor” mired in that status.
The success of Senate Republican leader Mitch McConnell and House Republican leader Kevin McCarthy in whipping their caucuses into a unanimous rejection of the COVID relief bill was a clear shot across the bow of Joe Biden and the Democrats in general. Biden had sold himself during the Presidential campaign largely as a centrist figure, a former U.S. Senator who had good relationships with Congressional Republicans in general and Mitch McConnell in particular. He called McConnell someone he’d always been able to work with despite their political and ideological differences. A lot of more progressive Democrats worried when we heard Biden deliver this sort of “bipartisan” happy talk and wondered if he fully realized how different the modern-day Senate is from the one he left 12 years ago, after having served there nearly half his life, to become Barack Obama’s Vice-President.
He knows now. The unanimous Republican opposition to his COVID relief package was the entire Republican Party in Congress raising their middle finger to the President and saying, “Fuck you!” The Republicans have largely dominated American politics since the crucial realigning elections of 1968 and 1980, and one of their principal weapons has been to use the anti-democratic features built into the U.S. Constitution to frustrate the will of the people whenever it deviates from Republican orthodoxy. Among their most effective tools are the Electoral College (since 2000 the winner of the popular vote for President has won the Electoral College only four times out of six), the equal representation of every state in the Senate regardless of population (many commentators have pointed out that though each major party now has 50 Senators, the 50 Democrats represent 40 million more people than the 50 Republicans) and the near-total control state governments have over who is allowed to vote and how Congressional and state legislative districts are drawn.
It’s clear that the Congressional Republicans are going to do to Biden what they did to Obama before him, and Bill Clinton before him: they’re going to wait him out and count on the usual pattern that the “out” party gains in the first midterm election of a new Presidency to put them back in control of both the House and Senate, just as Clinton lost the House in 1994 and Obama lost it in 2010. And in the modern-day virtual filibuster, they have a near-perfect weapon for seeing to it that the COVID relief bill will be the last major piece of legislation Biden and the Congressional Democrats are able to put through. The bizarre attachment of Senators like Sinema and Joe Manchin of West Virginia – as well as Biden himself, who as I noted above spent most of his adult life as a Senator – will ensure that the Democrats will accomplish nothing else in Biden’s first four years as President, and raise the likelihood that Republicans will take back Congress in 2022 and the Presidency in 2024.
The filibuster is not provided for in the Constitution, but it has become such an entrenched political tradition in the U.S. Senate it might as well have been. Anyone who’s seen the 1939 film Mr. Smith Goes to Washington will know how the filibuster was originally supposed to work: any Senator who could grab the floor and hold it could delay a piece of legislation unless two-thirds of the Senate voted for “cloture,” which meant an end to the debate. The longest and most famous real-life filibuster Senator Strom Thurmond (a thoroughgoing racist who fathered a daughter with a Black woman) mounted against the Civil Rights Act of 1957. He didn’t block the legislation completely, but he managed to get it watered down enough Congress had to pass another Civil Rights Act in 1964 to make sure anti-Black segregation ended. But Thurmond’s filibuster had a positive effect: because he actually had to make the case for Jim Crow to the American people, a lot of American people got to hear how ridiculous it was – and support for civil-rights legislation increased.
As a result of the 1957 and 1964 Civil Rights Acts and the desperate attempts of white Southern racists in the Senate to kill them with the filibuster, the rules got changed in the late 1960’s and early 1970’s. First, the magic number of Senators needed to end a filibuster was reduced from two-thirds (67) to three-fifths (60). But along with that good change in the rules, the Senate also enacted a very bad one: Senators no longer had to debate to conduct a filibuster. All they had to do was file a notice with the Senate clerk that they intended to debate a bill for it to come under filibuster and therefore require 60 votes to pass. Occasionally Senators still do full-dress filibusters – notably Senator Ted Cruz’s attempt to shut down the entire government to block continued funding of the Affordable Care Act (which featured him reading Dr. Seuss’s Green Eggs and Ham on the Senate floor as part of “debate,” he said because it was his kids’ favorite book – though I couldn’t escape the irony Cruz was carrying out his closed-minded filibuster against increasing access to health care by reading a parable against closed-mindedness).
But for the most part the modern-day virtual filibuster has created a 60-vote threshold to enact any legislation at all. The only significant exceptions are to confirm new Federal judges (a power Mitch McConnell and former President Trump used to the max to fill up the Federal bench with Right-wing crazies who will be there for the rest of their – and our – lives) and to pass so-called “budget reconciliation” bills. “:Budget reconciliation” was one of the attempts, like the virtual filibuster itself, to smooth the legislative process. The original intent was simply to make sure that the budget resolutions – the basic documents that fund the federal government – would be able to pass quickly and easily without the risk of endless Senate debate. But with the virtual filibuster having locked in a 60-vote supermajority threshold for the Senate to do almost anything – to the point where political pundits routinely declare bills passed by the House “dead on arrival” in the Senate because they can’t muster the 60 votes to close debate – “budget reconciliation” has been perverted beyond its original purpose.
Presidents and Senators of both major parties routinely load up “budget reconciliation” bills with unrelated items as long as they can persuade the Senate parliamentarian that they have something to do with the budget. The Democrats used budget reconciliation to pass the Affordable Care Act in 2010. The Republicans used it to push through President Trump’s enormous tax cut for the wealthiest American individuals and corporations in 2017. Now the Democrats have used it to pass a COVID relief plan whose cost is almost exactly that of the Trump tax cut – $1.9 trillion – which, as the Republicans in Congress have pointed out, has a lot of things in it that have little or nothing to do with the pandemic. Among these were expanding funding for the Affordable Care Act and increasing the child tax credit. Since one of the rules of “budget reconciliation” is that only one such bill can pass each year (though Senate Democrats have argued that they should get to do two in 2021 because no budget reconciliation passed in 2020), progressive Senators like Bernie Sanders – who when the Democrats took over the Senate became chair of the Budget Committee – boasted that they were going to cram as many progressive priorities into the reconciliation bill because they wouldn’t have the chance to pass as normal legislation, subject to the 60-vole threshold.
They even tried to stick an increase in the federal minimum wage to $15 per hour into the COVID relief bill so it could pass under budget reconciliation. They failed only because the Senate parliamentarian ruled that raising the minimum wage didn’t really relate to the Federal budget. Then Senate progressives tried to introduce the minimum wage hike as a separate bill and couldn’t even get all 50 Senate Democrats on board with it. That was what provoked Senator Sinema to her demonstration on the floor that not only was she against raising the minimum wage, she was proud of it and regarded her vote against it as an act of political heroism. (I remember when she was running in 2018 Kyrsten Sinema was one of the Senate candidates for whom I received bludgeoning e-mails demanding that I give her money. I’m glad to say I didn’t.)
Ironically, Joe Manchin has become the first Democratic Senator to embrace the strategy that could pass the Senate rulemaking process and give the Democrats the leverage they need to get things done. On March 7 he went on the interview shows Meet the Press and Fox News Sunday and said, “The filibuster should be painful, it really should be painful and we've made it more comfortable over the years,” he said on Fox News Sunday. “Maybe it has to be more painful. … If you want to make it a little bit more painful, make him stand there and talk. I'm willing to look at any way we can, but I'm not willing to take away the involvement of the minority.”
While that business about being “not willing to take away the involvement of the minority” is ridiculous under current circumstances – with their en masse opposition to the COVID relief bill Republicans in both the House and Senate sent a message, “We’re not interested in negotiating ‘bipartisan’ compromises. It’s our way or the highway” – I think Sen. Manchin is absolutely right. If you can’t (or won’t) get rid of the filibuster, at least get rid of the virtual filibuster. Make Senators who want to debate something to death actually have to debate. Force them to embarrass themselves by bringing the entire business of Congress to a grinding halt while they exorcise their pet peeves in front of the nation.
As little respect as I generally have for Joe Manchin, he’s totally right about this one. Filibusters should be painful for the filibustering Senator or party. The virtual filibuster has made them painless. The defenders of the filibuster say it “promotes bipartisanship,” but if it ever did, it does just the reverse now. It has given a dedicated, anti-democratic and totally nihilistic minority veto power over virtually the entire government. The first point of the bill of particulars against King George III in the Declaration of Independence was, “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” This is exactly what Republicans in general, and Senate Republicans in particular, are doing with tools like the virtual filibuster and the 60-vote threshold it creates to pass legislation.
Ideally, the filibuster itself should be ended. It’s an anti-democratic remnant of a foul tradition that was most often and most effectively used by racist Southern Democrats in the 20th century to block legislation to give equality to African-Americans. It’s also wrong on a fundamental democratic level; an elected majority should be able to pass whatever laws it wants, subject only to the limits on what Alexis de Tocqueville called “the tyranny of the majority” inserted in the Constitution. If voters don’t like what the majority does, they should have the right to vote them out so the other major party becomes the majority and has similar power. But if too many Democrats in the Senate have this irrational attachment to the filibuster, we should at least be able to get rid of the virtual filibuster so willful minorities can’t arbitrarily block all legislative action and exercise a tyranny of the minority.
