We served as Senate chiefs of staff in 2009, when a wave of change brought the country a new Democratic president and a clear majority in the Senate. Almost immediately, however, Senate Democrats reduced their own power by failing to change Senate rules that allow a mere 41 senators to block legislation. This was a mistake that the next Democratic Senate should not repeat.
This lesson is critical in light of the issues on deck for 2021. The covid-19 pandemic, for example, may require another robust stimulus package. In 2009, the threat of a filibuster prevented the Senate from even considering a spending bill equal to the challenge of the Great Recession. Today, the Republican majority in the Senate is blocking essential aid to unemployed Americans as well as to cities and states. Even if the election results demonstrate that the voters have rejected such tactics, a Republican minority in the Senate could similarly thwart federal pandemic assistance in 2021.
In light of the acute health-care challenges nationwide, the Affordable Care Act requires expansion, yet a lawsuit before the Supreme Court could result in it being declared unconstitutional. In 2009, the Democratic majority spent the better part of a year in a futile search for Republican votes for a health-care plan. In 2021, a Republican minority may be able to starve or cripple Obamacare simply by refusing to act.
Climate change demands aggressive efforts to compensate for the past four years of retreat. In 2010, the filibuster rule made it futile for the Senate to even hold a vote on cap-and-trade legislation passed by the House. In 2021, requiring 60 votes in the Senate would effectively preclude legislation bold enough to meet this existential challenge.
Just as important, the wave of support that has emerged for racial justice and police reform stands to yield meaningful legislation only if Democrats embrace majority rule in the Senate. As former president Barack Obama reminded us all in his eulogy for former representative John Lewis, filibusters have been used time and again to prevent, postpone and dilute needed change. Civil rights reform should no longer be held hostage until 60 senators approve.
The almost-certain costs of continuing to allow filibusters — costs borne by the unemployed, the sick, the environment and those seeking racial justice — easily outweigh the benefits. Indeed, the arguments for the filibuster have become flimsy with age.
For example, ending the filibuster would not end the Senate’s ability to serve, in James Madison’s words, as a “necessary fence” against the “fickleness and passion” of the public and the House of Representatives. When the Constitutional Convention allocated two Senate seats to each state, the largest state had roughly 10 times the population of the smallest. Today, the population of California is 68 times that of Wyoming. Requiring 60 votes for legislation allows coalitions of senators who represent less than 5 percent of the U.S. population to block any law. Ending the filibuster would actually move the Senate closer to the kind of balance anticipated by the Framers.
The Senate should not be stalled by fears that members would miss the filibuster after it is gone. First, the shattering of norms over the past four years strongly suggests that it would be naive to constrain the Senate majority’s ability to pass legislation now in the hope that future majorities would reciprocate. Second, ending the filibuster in 2021 would allow for passage of essential reforms to voting rights and campaign finance rules. Those structural reforms would sharply reduce any risks to our democracy posed by majority rule in the Senate. Third, the filibuster is a recipe for the kind of gridlock that comforts only those who are already comfortable. But a pandemic, record unemployment, a rapidly deteriorating climate and the need to prove that Black lives matter suggest that it is time to value action over amiability.
Finally, ending the filibuster would recognize the increased partisanship in the Senate, rather than contribute to it. We served under senators who were able to construct bipartisan majorities for important legislation, and we hope that the Senate finds its way back to constructive engagement and robust debate. But in these partisan times, a rule designed to create an exceptional hurdle to legislation has become a brick wall between the Senate and progress. Next year, a Democratic Senate would have the opportunity to break down that wall, and strengthen our democracy, by ending the filibuster.