The Washington PostDemocracy Dies in Darkness

Opinion Kill the filibuster — and reap what you sow

The dome of the U.S. Capitol.
The dome of the U.S. Capitol. (Amanda Andrade-Rhoades/For The Washington Post)
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Fast forward to January 2025. Donald Trump has been elected to a second term. The House and Senate are in Republican hands. In the Senate, the filibuster is gone, having been abolished by frustrated Democrats in 2021. Kentucky Sen. Mitch McConnell, back for a final term as majority leader at age 82, declares that he will not move to restore it.

Welcome to the apocalypse.

Congressional Republicans move quickly to implement their agenda. The border wall is fully funded. Voter ID is a requirement for federal elections, while mail-in voting is limited to those who can demonstrate a need. The assault weapons ban and stricter background check rules that Democrats enacted are repealed; instead, the right to carry concealed weapons without a permit applies nationwide.

Abortions are banned after the 20th week of pregnancy. Planned Parenthood is defunded. Unions are mortally wounded by a national right-to-work rule protecting employees from having to pay dues. The estate tax is eliminated. The war on blue states is fully unleashed; cities are prohibited from establishing sanctuaries for refugees, levying taxes on gasoline or energy of any kind, or eliminating cash bail requirements. Vast new tracts of federal land are opened for logging and drilling. And so on.

This completely possible nightmare is not to argue that Democratic fury over the filibuster today isn’t justified. The filibuster has been abused and overused, stopping measure after measure that has majority support — not just in the Senate but among the public. The device is neither a sacred right nor part of the constitutional design.

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Still, the question remains: Do the benefits of doing away with the filibuster, immediate and obvious as they are, outweigh the risks of what a different majority would do down the road? That should be a sobering concern for anyone pressing for its abolition, because a return to complete GOP control is a matter of only a few seats, and the damage that Republicans could do would be immense.

“First, do no harm” should be a guiding legislative principle as well as a medical one. My point here is not to defend the filibuster but to press for taking seriously the consequences of abandoning it. Perhaps the patient, democracy itself, is in such dire straits that the foreseeable risks are worth the short-term rewards. But I’m not there.

One common response to my concerns is that Republicans, given the opportunity, will move to majority rule anyway; why not seize the moment to achieve Democratic priorities? Yet when Republicans had this opportunity they didn’t take it, despite being bludgeoned to do so by Trump.

Yes, after Democrats cracked open the door on judges, eliminating the filibuster for lower court nominees, Republicans moved, predictably and tragically, to ditch the filibuster for Supreme Court justices as well. That just underscores the risks inherent in doing away with it entirely. The court’s three newest conservatives could never have been confirmed if they had had to win 60 votes.

Another response is that damage is asymmetric: The filibuster harms Democrats more than it does Republicans because Democrats have more interest in passing legislation, not simply blocking or undoing it. By contrast, Republicans’ top priorities, cutting taxes and confirming judges, can be accomplished by majority vote, thanks to budget reconciliation rules and the end of the judicial filibuster. Maybe, but even the partial list at the top of this column should give progressives pause.

Conversely, the argument continues, the risks of eliminating the filibuster are not as big as they appear for Democrats because the legislation they back enjoys public support — witness Republicans’ inability to corral even a majority to repeal the Affordable Care Act. Maybe, again, but Democrats can’t count on another John McCain to show up at the last moment with another thumbs-down.

A final, unsettling argument for elimination is that, combined with other anti-majoritarian structures and tactics, most notably the distribution of Senate seats that gives less populous (and redder) states an outsize voice, the filibuster operates as a democracy-prevention device.

Under this argument, a Senate whose minority reflects an even smaller minority of the voters is empowered to block measures that would fortify the democratic process by making voting more accessible and making representation more equitable. The filibuster helps frustrate measures to eliminate partisan gerrymandering, strengthen the voting rights of minorities and make voting more accessible to everyone.

This leads to the understandable temptation to undo the filibuster when it comes to such measures. Is there a way to add a voting and civil rights exception to the filibuster that a Republican majority will not misuse to disenfranchise the majority? One party’s voter suppression is another party’s ballot security. What would stop Republicans from using this loophole to reduce access to the polls, insisting on two kinds of ID and no early voting? Or adopting another exception for a legislative priority — protecting Second Amendment rights or the unborn or religious freedoms — that many Republicans consider equally compelling?

I’m not convinced that new exceptions designed to ease the pressure on wholesale repeal will work. But given the nightmare scenario that could ensue after eliminating the filibuster entirely, that’s at least worth a try.

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Read more:

Read a letter in response to this piece: If Democrats don’t kill the filibuster, Republicans will

E.J. Dionne Jr.: Goodbye and good riddance to the filibuster

Alexandra Petri: McConnell threatens to hold the Senate hostage unless he can keep holding the Senate hostage

Jennifer Rubin: An open letter: Save voting rights, pass bills — and keep your filibuster

Greg Sargent: An intriguing reason that Republicans want to keep the filibuster

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