Among the reasonable criticisms of Sen. Bernie Sanders (I-Vt.) is that he has extremely ambitious policy ideas — single-payer health care, free college tuition and so on — but not much in the way of ideas about how to pass them through Congress, other than to lead a popular movement so compelling that it will force Republicans to yield to its power and vote for bills they find abhorrent to everything they believe.
Still, it was something of a surprise to hear Sanders tell CBS’s John Dickerson this week that “I’m not crazy about getting rid of the filibuster,” seeming to dismiss the idea that a 60-vote requirement to pass legislation through the Senate would be an impediment to his agenda.
Maybe Sanders knows something about the openness of Republican senators to democratic socialism that the rest of us don’t, but he has a good deal of company even among his fellow presidential candidates. “We should not be doing anything to mess with the strength of the filibuster,” Sen. Cory Booker (D-N.J.) recently said. Sen. Kirsten Gillibrand (D-N.Y.) was somewhat more equivocal: “Having just lived through being in the minority and how destructive the 51-vote threshold has been for Supreme Court justices, I just want to think long and hard about it.”
In April 2017, senators wrote a letter to Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles E. Schumer (D-N.Y.) urging the maintenance of the legislative filibuster. Among those who signed were Gillibrand, Booker, and Democratic Sens. Amy Klobuchar (Minn.), Sherrod Brown (Ohio), and Kamala D. Harris (Calif.).
They might change their minds if they were to be elected president and Democrats managed to take control of the Senate, which could happen in 2020. And we should hope they do. The legislative filibuster may sometimes be useful to progressive purposes, but it doesn’t mean it’s not still an abomination. And if Democrats have the power to get rid of it, that’s exactly what they should do.
There is one presidential candidate, Sen. Elizabeth Warren (D-Mass.), who is at least coming close to saying the filibuster should be eliminated. Here’s what she told “Pod Save America” this week:
So first they steal a Supreme Court seat, then they turn around and change the rules on filibuster on a Supreme Court seat. And so when it swings back around us what are we going to do? And my answer on that is all the options are on the table, that that’s how we gotta do this. If the Republicans are going to try to block us on key pieces that we’re trying to move forward, then you better believe we gotta keep all the options on the table. And I think that’s the way we should be describing it right now on everything that the Republicans are doing: that nobody is gonna forget what happened here and all of the options are on the table. We’re not going to play — let them play by one set of rules and then we play by the, you know, polite, everybody drinks tea and and keeps a curled pinky up while they do it. I’m just not for that.
This issue is, in some ways, emblematic of the differing approaches that Republicans and Democrats have to governing. Republicans trample over every norm and tradition if it will give them an advantage, and, in response, Democrats usually refuse to do the same, pledging their devotion to the civil operation of august institutions even whether it means they’re prevented from doing what they were elected to do.
One argument for keeping the legislative filibuster — one that Republicans offer when asked why they haven't gotten rid of it in the last two years — is that even if it frustrates you when you're in the majority, you'll feel much differently when you're in the minority again. Republicans are sincere when they say this.
But that’s because they need the filibuster more than Democrats do. Republicans legislative goals are modest, as you can see from what they did in the two years they had control of the White House and both houses of Congress. They used the reconciliation process (which circumvents the filibuster’s supermajority requirement) to pass their primary objective, a tax cut for the wealthy and corporations. After that, they didn’t have much else they wanted to do. They tried to repeal the Affordable Care Act, which failed because it couldn’t even garner 50 votes in the Senate — not 60, but 50.
That ought to be a lesson for Democrats. If they believe in the things they’re advocating, they shouldn’t fear their repeal by an untethered Republican Senate of the future. The Affordable Care Act was an incredibly controversial law full of compromises and was subjected to years of brutal and dishonest right-wing attacks, yet when Republicans finally had the chance to keep their promise and repeal it, they couldn’t do the job because public opposition was so strong. If you think your Medicare-for-all plan will be as good as you say, why should you fear that it won’t be as secure as the Affordable Care Act?
Republicans need the filibuster to thwart Democrats because Democrats believe in a strong government and have a comprehensive agenda. They’d like to pass health-care reform, tax increases on the wealthy, an increased minimum wage, family leave, child care, action on climate change, strengthened voting rights, and a good deal more. With the filibuster in place, almost none of it will be possible.
Then there is the simple fact that the filibuster is a grotesquely undemocratic feature of our system, taking a body that is already anti-majoritarian and skewing it even further against the will of the electorate. And it’s getting worse. The 21 least populous states, whose senators could together kill any piece of legislation by filibuster, now represent a combined 11 percent of the American population, meaning one out of every nine Americans could veto something that the other eight Americans want.
And according to some estimates, in two decades, 70 percent of Americans will live in just 16 states. That huge majority will be represented by 32 senators, while the remaining 30 percent of Americans will control 68 Senate seats.
A few of those small states are majority Democratic (e.g., Delaware, Rhode Island) but most of them are controlled by Republicans. Even today, though Republicans still control the Senate, a majority of voters chose to be represented by Democrats. Which means that when Democrats use the filibuster, it’s the party representing the majority of Americans doing the will of a majority of Americans. When Republicans use the filibuster, it’s the party representing a minority of Americans thwarting the majority’s will.
There’s one more thing to keep in mind. If history is any guide, a victory by Democrats in 2020 is likely to be followed by a backlash in the 2022 midterm elections, when Republicans could take back one or both houses of Congress. That means President Warren or President Harris or President Sanders would have just two years to accomplish all their ambitious legislative goals. It’s not a lot of time, so they’d better make the most of it.