Back in February, Sen. Elizabeth Warren (D-Mass.) told “Pod Save America” that if Democrats take the White House, they have to be prepared to wage full-blown procedural warfare. “If the Republicans are going to try to block us on key pieces that we’re trying to move forward," Warren said, "then you better believe we gotta keep all the options on the table.”
At the time, that was as close as nearly any Democratic presidential candidate had come to saying the filibuster on legislation should be eliminated. Other candidates have either said they want to keep it (even Bernie Sanders) or have been undecided. So far, among the candidates, only Jay Inslee has said clearly that he is against the filibuster.
But in a speech before the Rev. Al Sharpton’s National Action Network on Friday, Warren went all the way. Here’s what she said:
For generations, the filibuster was used as a tool to block progress on racial justice. And in recent years, it’s been used by the far right as a tool to block progress on everything.
I’ve only served one term in the Senate — but I’ve seen what’s happening. We all saw what they did to President Obama. I’ve watched Republicans abuse the rules when they’re out of power, then turn around and blow off the rules when they’re in power.
We saw it happen again just this week. Republicans spent years — years — exploiting the rules to slow down or block President Obama’s mainstream judges and executive nominees. But now that they’re in power, they’re unilaterally changing those rules to speed them up and ram through President Trump’s extremist nominees.
So let me be as clear as I can about this. When Democrats next have power, we should be bold: We are done with two sets of rules — one for the Republicans and one for the Democrats.
And that means when Democrats have the White House again, if Mitch McConnell tries to do what he did to President Obama, and puts small-minded partisanship ahead of solving the massive problems in this country, then we should get rid of the filibuster.
She’s referring to McConnell’s recent move to reduce debate time in the Senate on certain executive branch nominations, including judgeships, from 30 hours down to two hours, or basically nothing. That will make it all but impossible for Democrats to raise objections to nominees who haven’t already generated controversy and attention.
McConnell gave Warren a hand by reminding everyone that Republicans are willing to change any rule and smash through any norm if it serves their momentary partisan interest; obviously, there was no more despicable example than their decision to refuse to allow President Barack Obama to fill a vacant Supreme Court seat.
But the one thing they haven’t done is eliminate the legislative filibuster. The argument McConnell and other Republicans make, which is echoed by Democrats who want to keep it, is that though it might be satisfying in the short run to get rid of the filibuster and pass all your favored legislation with a majority and not a supermajority, it won’t look so great once the other party takes control of the Senate, as it will eventually.
What people miss about this argument, however, is that though people in both parties think it’s in their self-interest to retain the filibuster, each party’s self-interest is profoundly different.
Consider the first two years of the Trump administration, when Republicans controlled both houses of Congress. A Democrat might say, “Imagine what they would have done without the filibuster!” The truth, however, is that they would have done almost exactly what they did do. Their top priority was a huge tax cut for corporations and the wealthy, which they passed using reconciliation, which requires only 50 votes. They tried to repeal the Affordable Care Act but failed to get 50 votes to do so. And that was about the entirety of their ambitious goals.
It isn’t that there weren’t some other things they wanted to do. But they knew that doing them would be politically disastrous. If there were no filibuster, they could outlaw abortion, for instance, but it would be political suicide. So the filibuster actually helps the GOP, by providing an easy excuse for why it doesn’t do the extreme things its base wants.
Democrats, on the other hand, are the party that believes government should do big things to make people's lives better. So they are almost always going to be the ones proposing ambitious and popular legislation that will be blocked by the filibuster, meaning that it is inherently more restrictive on them than it is on Republicans.
Not only that, the Senate itself will always be tilted in favor of Republicans. It’s a structurally undemocratic institution that gives disproportionate power to sparsely populated states, most of which are conservative. Wyoming’s 577,000 residents get two senators, and California’s nearly 40 million residents also get two senators.
If you add up all the votes cast in the past three elections that produced the current Senate (those totals are here, here and here), you find that Democratic candidates got just over 125 million votes and Republican candidates got just over 100 million votes. Yet the Republicans control the Senate by a 53-47 margin.
That fact, combined with a filibuster that allows Republicans to cut any Democratic legislation off at the knees when Democrats are in the majority — not to mention vote suppression, gerrymandering, the electoral college and the disenfranchisement of voters in the District of Columbia — forms a barrier against small-d democratic responsiveness.
When people such as Warren say we should get rid of the filibuster so Congress can actually operate on majority rule, Republicans — and many in the media — will say it’s some kind of crazy leftist idea. But if majority rule is a crazy leftist idea, what does that say about how our government is organized?